Communication Construction Services, Inc. v. United States

In the United States Court of Federal Claims

No. 10-878C

Bid Protest

(Filed: April 30, 2014) 1

(Reissued: May 30, 2014)

************************ *

*

COMMUNICATION CONSTRUCTION *

SERVICES, INC., *

Post-award Bid Protest; 28 U.S.C.

*

§ 1491(a)(1) Jurisdiction;

Plaintiff, *

Nonappropriated Fund Instrumentality

*

(“NAFI”); Army and Air Force

v. *

Exchange Service Procurement; Blue &

*

Gold Waiver; Supplementation of

THE UNITED STATES, *

Administrative Record; Breach of

*

Implied Duty of Fair Dealing; 10 U.S.C.

Defendant, *

§ 2492a; Organizational Conflict of

*

Interest; Responsibility Determination;

and *

Technical Evaluation; Fee Evaluation;

*

Appearance of Impropriety;

RESOLUTE PARTNERS, LLC, *

Indebtedness of Awardee.

*

Intervenor. *

*

************************ *

Richard P. Rector, DLA Piper, LLP (US), 500 Eighth Street, NW, Washington, D.C.

20004, for Plaintiff. Seamus Curley, Samuel B. Knowles, Dionis M. Gauvin, and Nedra S.

Adams, DLA Piper, LLP (US), 500 Eighth Street, NW, Washington, D.C. 20004, of Counsel.

Stuart F. Delery, Jeanne E. Davidson, Steven J. Gillingham, and Alexis J. Echols, United

States Department of Justice, Civil Division, Commercial Litigation Branch, P.O. Box 480, Ben

Franklin Post Office, Washington, D.C. 20044, for Defendant.

Joseph P. Hornyak, Holland and Knight LLP, 1600 Tysons Boulevard, Suite 700,

McLean, VA 22102, for Intervenor. Megan M. Jeschke and Jacob W. Scott, Holland and Knight

LLP, 1600 Tysons Boulevard, Suite 700, McLean, VA 22102, of Counsel.

1

The Court issued this opinion under seal on April 30, 2014, and directed the parties to

file proposed redactions by May 14, 2014. The Court publishes this opinion adopting the

proposed redactions. Redactions are indicated by brackets “[ * * * ].”

_____________________________________________________________________________

OPINION AND ORDER GRANTING DEFENDANT’S AND INTERVENOR’S

MOTIONS FOR JUDGMENT ON THE ADMINISTRATIVE RECORD

_____________________________________________________________________________

WILLIAMS, Judge

Plaintiff, Communication Construction Services, Inc. (“CCS”) challenges the Army and

Air Force Exchange Service’s (“AAFES”) award of a contract for internet and

telecommunications services to Resolute Partners, LLC (“Resolute”). AAFES, a

nonappropriated fund instrumentality of the United States Government (“NAFI”), provides

merchandise and services to active duty and reserve military members and their families.

AAFES’ earnings support the Army’s Family Morale Welfare and Recreation Command

(“FMWRC”) programs. CCS brings this bid protest invoking this Court’s general contract

jurisdiction, 28 U.S.C. § 1491(a), claiming that Defendant breached its implied duty to fairly

consider CCS’ proposal. This matter comes before this Court on CCS’ motion for summary

judgment and Defendant’s and Intervenor’s motions for judgment on the Administrative Record

(“AR”). CCS seeks its proposal preparation costs and an order remanding the procurement to

AAFES.

CCS presents five grounds of protest. First, CCS claims that the Army Recreation

Machine Program (“ARMP”), a subsidiary of FMWRC, acted as subcontractor to the awardee,

Resolute, in violation of 10 U.S.C. § 2492a. This statute prohibits Department of Defense

(“DoD”) entities from offering or providing telecommunications services to consumers for a fee

and from competing for contracts to provide such services. Second, CCS claims that FMWRC’s

role in the procurement created an organizational conflict of interest (“OCI”) because FMWRC

shaped the solicitation and participated in the source selection process, and because FMWRC’s

subsidiary, ARMP, competed in the procurement as a subcontractor to the awardee. Third, CCS

argues that the technical and price evaluations conducted by AAFES were unreasonable and

contrary to the terms of the solicitation. Fourth, CCS contends that AAFES improperly

determined that Resolute was a responsible contractor. Lastly, CCS claims that an appearance of

impropriety tainted the competition because Resolute was indebted to AAFES and AAFES

considered this debt in making the award decision.

The Court denies the protest. CCS waived its statutory violation and OCI claims because

it knew the grounds for those claims prior to award but failed to timely raise them. The

evaluation of proposals and responsibility determination were reasonable, and CCS failed to

demonstrate that either an OCI or an appearance of impropriety tainted the competitive process.

2

Findings of Fact 2

Information Services Provided on Air Force and Army Installations

There are two kinds of information services provided on Air Force and Army

installations, Personal Information Services and FMWRC Information Services. See AR 4, 119,

366. Personal Information Services include “for-fee” internet, telephone, and television services

paid for by civilian or military personnel for personal use -- for “unofficial services” -- in

barracks, housing, and internet cafes. AR 334, 362, 427-28, 1776. Prior to December 2009, both

AAFES and FMWRC provided “for-fee” internet services on Army and Air Force installations.

AR 119, 366. AAFES provided the services through contracts with internet service providers

(“ISP”), while FMWRC utilized a government-owned infrastructure operated by ARMP to

provide the services. AR 2, 119, 366. This protest arose after FMWRC and AAFES executed an

agreement to transfer management, sale, and operation of the for-fee internet services to AAFES.

AR 4-7.

The FMWRC Information Services supported “official” business functions where users

do not pay a fee, and ARMP provided these free services using the FMWRC Information

Services network, a telecommunications system of government-owned utilities and infrastructure

-- the same infrastructure ARMP used to provide Personal Information Services. AR 1, 2, 334,

427; see AR 119, 366, 8768, 8808, 8822, 8836.

Legislative and Regulatory Changes Regarding the Provision of Personal Information

Services

On February 23, 2009, AAFES and FMWRC entered into a Memorandum of

Understanding (“MOU”) to “establish a non-competitive partnership between AAFES and

FMWRC to provide common levels of personal information services based on best business

practices and cost benefit analysis that minimizes the cost of services to individual users.” AR

9158; see AR 9158-62. The MOU stated that the partnership would be “executed” in accordance

with implementing instructions that would “describe the detailed responsibilities” of each

partner. AR 9159.

On May 11, 2009, Army, AAFES, and DoD officials met with the House Armed Services

Committee (“House Committee”) concerning the proposed plan to transfer all Personal

Information Services operations and related contracts to AAFES. See AR 10537. In a letter

dated May 22, 2009, the House Committee approved this plan and provided the following

direction:

The Committee views military resale and nonappropriated fund business activities

as government entities that must not compete directly with private sector

2

These findings are derived from the AR as supplemented. As explained below, the

Court issues findings of fact because it resolves the protest on motions for judgment on the AR,

not motions for summary judgment. Findings of fact related to the evaluation and the alleged

organization conflict of interest are included in the discussion.

3

enterprises capable of providing the desired services. In this regard, the

Committee directs that within the Department of Defense, no DoD entity may

either provide personal information services using DoD resources, personnel or

equipment, or compete for contracts to provide such services when the intent is to

charge users to recover cost or to earn profits. This prohibition does not prevent

or preclude the use of DoD personnel, resources or equipment to administer and

oversee personal information services contracts, nor does it preclude [AAFES]

from carrying out the plan to provide personal information services through

contractors as approved by the Committee.

AR 10531.

The final version of the National Defense Authorization Act for Fiscal Year 2010

incorporated the House Committee’s directive. See Pub. L. 111-84, § 651, 123 Stat. 2368. Now

codified at 10 U.S.C. § 2492a, this legislation became effective on October 28, 2009, and

provides:

(a) Limitation.—(1) Notwithstanding section 2492 of this title, the Secretary of

Defense may not authorize a Department of Defense entity to offer or provide

personal information services directly to users using Department resources,

personnel, or equipment, or compete for contracts to provide such personal

information services directly to users, if users will be charged a fee for the

personal information services to recover the cost incurred to provide the services

or to earn a profit.

(2) The limitation in paragraph (1) shall not be construed to prohibit or preclude

the use of Department resources, personnel, or equipment to administer or

facilitate personal information services contracts with private contractors.

***

(c) Personal Information Services Defined.—In this section, the term “personal

information services” means the provision of Internet, telephone, or television

services to consumers.

10 U.S.C. § 2492a (Supp. III 2009).

On December 24, 2009, FMWRC and AAFES finalized a Memorandum of Agreement

(“MOA”) implementing the requirements of § 2492a. AR 4-7. The December MOA provided:

AAFES will be responsible for provisioning for-fee Internet services on Military

Installations through a commercial Internet Service Provider (ISP).

FMWRC will transfer for-fee internet service programs currently operated by

ARMP to AAFES on a mutually agreed upon schedule that minimizes disruption

to the customer. All transfers must be completed by 31 December 2010.

4

***

To the extent that AAFES’ commercial ISP[s] can provide their own

infrastructure to maintain connectivity at existing locations they may do so.

Otherwise, AAFES’ ISP[s] will have the option of using ARMP provided

resources.

***

The level of ARMP Internet Services provided to the AAFES ISP will meet or

exceed current service levels.

[FMWRC will] [o]ffer to sell or lease existing Internet assets dedicated to

Personal Information Services . . . directly to AAFES’ ISPs at a negotiated value

where AAFES’ ISPs intend to use existing assets and/or infrastructure to deliver

the Internet services to a location.

AR 5-6. To implement this “transfer of function,” AAFES was to “competitively award and/or

modify existing contracts for for-fee Internet services transferred from FMWRC to AAFES.”

AR 6. The December MOA further stated: “There will be no transfer of Internet assets from

FMWRC to AAFES as a component of this agreement. FMWRC through [its] ARMP program

will offer Internet network services as an option to AAFES’ ISP[s] for a fee.” AR 7.

CCS’ and Resolute’s Bridge Contracts

As part of the transfer of Personal Information Services from FMWRC to AAFES,

ARMP awarded CCS a bridge contract on May 4, 2010, to use ARMP’s network infrastructure

and equipment to provide Personal Information Services for consumers at 318 building locations

on military installations. AR 1867-92. CCS’ bridge contract was set to terminate on November

30, 2011. AR 1868, 1875. The bridge contract provided that ARMP planned to use its network

to provide bandwidth for personal information services, as it had before the bridge contract. AR

1869-70.

On July 10, 2010, ARMP entered into a similar bridge contract with Intervenor Resolute,

that covered 243 buildings. See AR 2025-45.

The Instructions for Personal Information Services Implementation on FMWRC’s Website

“Implementation Instructions” were issued to “provide a centralized reference document”

in support of the MOU governing the AAFES/FMWRC “non-competitive partnership” to

provide Personal Information Services. AR 330-63. This document, or a substantially similar

version, was available on FMWRC’s webpage as early as February 4, 2010, but it was not

referenced in the solicitation or directly disseminated to offerors in the procurement process. See

id.; Def.’s Notice of Compliance ¶¶ 1-2, Nov. 21, 2011; Evard Decl. (“Third Evard Decl.”)

¶ 5(1), Nov. 18, 2011 (Ex. A to Plaintiff’s Resp. to Nov. 15, 2011 Order); Guertin Decl. ¶ 4,

5

Nov. 21, 2011 (Ex. A to Intervenor’s Resp. to Nov. 15, 2011 Order). Nonetheless, Defendant

included these Instructions, some 34 pages, in the AR. AR 330-63.

The purpose of the Implementing Instructions was to outline the procedures to

successfully deploy the AAFES/FMWRC partnership and identify the role, oversight, and

management responsibilities of AAFES to deliver Personal Information Services to service

members. AR 331. Under a heading titled “Staff Planning,” the Implementing Instructions

stated, “FMWRC will appoint a FMWRC Telecommunications Operations Manager as the

primary FMWRC Coordinator of the [Personal Information Services] partnership . . . .” AR 337.

The Instructions also stated, “FMWRC will assign one . . . Contracting Officer and one . . .

Business Manager, under operational control of the [AAFES Vice President] . . . .” Id. The

Implementing Instructions further specified that the business manager would be a voting member

of the Source Selection Committee panels, participate in the development of new business

requirements, and have a role in developing contracting methodology. AR 351-52.

The Implementing Instructions also defined the role of the contracting officer, who was

to develop and assist with Personal Information Services contract implementation and execution,

and lead in the development and fulfillment of acquisition plans, contract requirements,

solicitation development, contract negotiations, and award. AR 353-54.

The Request for Information

On February 11, 2010, AAFES issued a Request for Information (“RFI”) to prospective

contractors to provide for-fee consumer telecommunication services at various military

installations. AR 8. The RFI notified vendors that “ARMP [would be] able to provide AAFES

selected suppliers” network support, but that “[a]ny agreements with ARMP [would] be

independent of contracts with AAFES.” AR 29. The RFI stated that after a solicitation was

issued, ARMP would host an industry information day where attendees would gain an

understanding of “ARMP provided services” and participate in an open forum to exchange

information. Id.

The Draft Solicitation

On April 12, 2010, AAFES issued a draft solicitation for the for-fee ISP procurement.

AR 118. The draft solicitation offered ARMP as a ‘“turnkey network’ and maintenance provider

for those locations where ARMP [had] installed infrastructure” and stated that “[i]f providers

choose to use ARMP, then ARMP shall assume the role of a sub-contractor to the prospective

ISP.” AR 119-20. The draft solicitation listed advantages of using the ARMP network solution

that were substantially reiterated in the final solicitation. AR 120-21, 367. The draft solicitation

also announced Industry Day, characterizing it as a “Site Survey” and an important event for

prospective offerors. AR 118; see AR 126.

Industry Day

On April 28, 2010, AAFES and ARMP held Industry Day at Fort Carson, Colorado. AR

277. Representatives from CCS including Mr. Tim Evard, CCS’ Executive Vice President,

6

attended Industry Day. AR 328-29, 2108. The Industry Day presentation, also referred to as a

pre-proposal conference, included an introduction to the “Key Procurement/Operations Team,”

and an overview of ARMP’s services. AR 275-76, 279, 281-82; see AR 290. The record

contains the 68 slides used in the Industry Day presentation. AR 256-323.

As part of the Industry Day presentation, AAFES’ Chief for New Business and another

AAFES employee showed attendees a slide identifying the “Key Procurement/Operations Team”

as Cynthia Williams (Contracting Officer, AAFES), Nathanial Wills (Army Contracting

Specialist, FMWRC), Mike Kaucher (Chief for New Business, AAFES,) John Temple (Army

Business Manager, FMWRC), David LaPradd (Telecommunications Operations Manager,

FMWRC), and William Hart (General Manager, ARMP). AR 126, 279.

Industry Day attendees were informed that ARMP was an “operational element of

[FMWRC]” that was “[c]reated to develop revenue to fund Morale, Welfare & Recreation

programs Army wide.” AR 274. A slide listing frequently asked questions stated that bidders

could partner with ARMP, and that ARMP would provide “installation site review coordination

and service deployment.” AR 321. Another slide informed offerors that ARMP could provide a

variety of services: “Internet Gateway & LAN Services; Internet Access Device leasing,

management, and support; Service Leasing; Hardware Support; Security Services and Support;

Systems Maintenance, Troubleshooting, and Support; Onsite Technical Service; Recreational

Machine leasing, and Support; [and] Remote Technical Support.” AR 275. An additional slide

indicated that ARMP “operated” in the Continental United States at “[m]ost major garrisons”

with “[p]lans to reach all garrisons in coming years.” AR 276.

A slide titled “Key Telecommunications Agreements/Policies” identified the February

2009 Memorandum of Understanding, the December 2009 Memorandum of Agreement and an

April 2010 Army policy letter that provided guidance regarding the transition of the Army’s for-

fee Personal Information Services to AAFES. AR 282; see AR 362-63. These three documents

were available on FMWRC’s website. Def.’s Notice of Compliance ¶ 2. The Industry Day slide

presentation did not reference the Implementing Instructions. See AR 256-323. 3

The Solicitation

On May 12, 2010, AAFES issued solicitation number RFP ATI-09-010-10-014. AR 364-

4

463. The purpose of the solicitation was to obtain “pre-paid,” “for-fee” internet services, with

an option for voice, video, and “post-paid” internet, at 79 Army and Air Force installations in

five geographic locations in the United States. AR 376, 410-417. The solicitation contemplated

a five-year base period, with five one-year option periods. AR 376. Provision of services at

other military bases within a geographic group was optional. Id. The solicitation further notified

3

On April 30, 2010, the contracting officer emailed Industry Day attendees a copy of the

“presentations briefed at Industry Day.” AR 10468-69.

4

The solicitation was largely the same as the draft solicitation issued the prior month.

Compare AR 119-231 with AR 366-463.

7

offerors that service requirements could be expanded to military bases not listed in the

solicitation. AR 376, 378.

The solicitation expressly addressed ARMP’s role as a potential subcontractor. The

Executive Summary stated:

e. ARMP as a Potential Internet Sub-Contractor

1) ARMP has offered a “turnkey” network and maintenance provider agreement

for those Installations where ARMP infrastructure exists or is planned. At those

Installations, commercial ISPs will have an option of leasing the ARMP network

and equipment at a negotiated price, or [of providing] the necessary network and

equipment separately. If providers choose to utilize the ARMP network, then

ARMP shall assume the role of sub-contractor to the prospective ISP. The ISP’s

agreement with ARMP will be a separate contract from the contract with AAFES.

AR 366-67 (emphasis omitted). Under the same paragraph, the solicitation listed “[s]ome

advantages of using the ARMP network and equipment:”

i. The existing bandwidth, infrastructure and network components are

already in place which may prevent any break in current service and will

facilitate faster speed to market.

ii. Turnkey operation for the new provider.

iii. Maintenance, support, and installation of new equipment and upgrades as

necessary . . . .

iv. Ability to continue to support customers without a break in service during

the transition period from ARMP to the competitively selected AAFES

ISP.

v. Efficiency and economy which ARMP currently utilizes with [its]

installed infrastructure to support FMWRC mission related services.

***

vi. ARMP has the capability to coordinate between the Installation

Management Command (INCOM) proponent activities on Army

Garrisons and the AAFES ISP to ensure proper implementation and has

the flexibility to adjust network configurations to accommodate growth

and mission changes.

vii. ARMP provides Internet network access to a commercial carrier and

bandwidth provisioned to selected Installations through access points

8

After each voting member of the Source Selection Committee scored the proposals, the

Committee would meet for discussion, with the goal of coming to a consensus on the evaluations

and preparing a written report to summarize the results and rank the proposals. AR 7935, 7942-

43. The report was to discuss the basis for the Source Selection Committee’s ranking in

sufficient detail to support the Committee’s recommendation. AR 7935, 7943. Exchange

Operating Procedure 65-13 provided that the Source Selection Committee report would

“summarize[] the strengths, weaknesses, and risks of each proposal.” AR 7935. All original

individual scoring sheets were required to be attached to the report. AR 7943.

In addition to a technical evaluation, the solicitation stated that AAFES would review the

offerors’ fee proposals for the projected financial benefit to AAFES, and explained that “[a]s the

technical rankings [became] closer, the Fees to AAFES [would] become more important.” AR

453, 455. Under the solicitation, the fees for internet, voice, and video services were to be

weighted as follows:

a. Initial Contract Ordering Period Fees - will be multiplied by 2

b. Contract Option Periods 1-5 Fees - will be multiplied by 1

AR 455. For purposes of evaluation, the voice and video services fees would not be combined

with internet service fees. Id. The purpose behind these weights was “to ensure that AAFES . . .

received a balanced proposal and obtained a reasonable fee proposal for ‘firm’ periods (years 1-

5) versus the uncertain Contract Option Periods.” AR 1512 (emphasis in original). Each offeror

was to submit a single fee percentage for each military installation and each service being

proposed within a geographic group, accounting for every installation within the geographic

location being proposed. AR 458. As part of these fee proposals, offerors were required to

provide pro forma Operating Statements, containing projections for internet service in each

geographic group being proposed. Id.

Offerors were also required to submit past performance references. AR 456, 458. The

solicitation required each offeror to “provide descriptions of three (3) to five (5) operations in

use during the past five (5) years of similar type and size of the project, as described within this

solicitation.” AR 458.

On June 14, 2010, AAFES amended the solicitation by, inter alia, adding an internet

services pro forma Operating Statement form and delineating the type of information to be

included in that Statement. AR 882, 908 (Tab 12). Offerors were required to provide financial

information in eight categories: investment outlays, sales, gross operating income, operating

expenses, total operating expenses, operating earnings before interest and taxes, pre-tax income,

and net income. AR 908 (Tab 12). The pro forma Operating Statements were to cover only the

first five-year contract period, even though offerors were required to provide fee data for a 10-

year period, and were to be evaluated based on a 10-year period. Id.; see AR 407. The

Amendment also extended the due date for the submission of proposals until June 23, 2010. AR

882 (Tab 12).

10

CCS’ Pre-Proposal Communications with AAFES

In March 2010, CCS emailed AAFES objecting to build-out activities at Fort Bliss, a

location where CCS was providing services under its bridge contract, claiming ARMP’s

activities violated 10 U.S.C. § 2492a. AR 2515-16; see AR 279, 1887. This statute prohibited

DoD entities from offering or providing Personal Information Services to consumers using DoD

resources, personnel, or equipment or competing to provide Personal Information Services for a

fee. CCS stated:

[W]e are becoming increasingly concerned that ARMP has every intention of not

only staying in the WIFI business, but monopolizing it per their previous effort, in

what appears to be blatant disregard of [C]ongress’ wishes.

We had previously informed you that we would take Fort Bliss and give

consideration to the ARMP “services” where [it] had deployed infrastructure. We

presumed, based on our conversations, that [ARMP] would not continue to invest

tax dollars in adding infrastructure since we are willing to provide the internet

services[.]

However, [ARMP] continue[s] to add or attempt to add to [its] network . . .

despite our stated willingness and ability to provide service.

Id.

AAFES replied:

We are not privy to all of [ARMP’s] plans and negotiations between you as it

relates to the optional infrastructure use. However, we are aware and do

understand ARMP has a command commitment to complete build-out work at

Bliss--and other locations--and that you both were in discussions on how that

could be accomplished at Bliss.

The legislative guidance is clear on how [Personal Information] services will be

provided and FMWRC has made a commitment to that.

AR 2515. In a response sent to both AAFES and FMWRC, CCS stated: “All due respect to

ARMP and [its] ‘commitments.’ The Congress and the Law is clear. What part of this is not

understandable? Congress . . . has said stop doing this and it is continuing.” AR 2514; see AR

107, 279, 8150.

In May 2010, CCS submitted questions to the contracting officer regarding ARMP’s

planned role in the procurement. AR 2943. CCS stated:

[ARMP’s] role is a little confusing and the scope of [its] support is not clear. Will

[it] only be able to provide support services where [it has] deployed [Personal

Information Services] already? Will [it] be able to provide those services where [it

11

deploys FMWRC Information Services] going forward (over [its FMWRC

Information Services] network)? Is there any certainty around where and on what

time schedule [it] will be able to provide services going forward? If [ARMP’s]

business model is to receive a percentage of revenue, in exchange for providing

infrastructure and capital investment, [is ARMP] in a position to deploy “risk”

capital for the winning bidder(s)?

Id. The contracting officer responded:

a) ARMP is not limited to deploy [Personal Information Services] to provide

support. The deployment of ARMP’s official service support network [FMWRC

Information Services] is independent from the for fee services that AAFES will

offer.

b) ARMP would need to confirm [its] capability outside the Army sphere and

[FMWRC Information Systems] network. As the [FMWRC Information

Services] network expands, the capability to support providers will also expand;

although, separate agreements and [service-level agreements] are required with

ARMP to consider future expansion.

c) This will be handled on a case by case basis directly with ARMP and included

in the [service-level agreement]. It is [AAFES’] understanding that ARMP will

work collaboratively with the vendors.

d) This will be handled on a case by case basis directly negotiated with ARMP.

Under the ARMP proposal, [its] risk is the same as the vendor[’s], since the

reimbursement to ARMP is based upon revenue and there is a fixed cost for

ARMP to install and maintain the network.

Id.

Offerors’ Knowledge of the Implementing Instructions

On February 4, 2010, Resolute’s Vice President of Marketing, Paul Guertin, found the

Personal Information Services Implementing Instructions “during [a] web-based search,” and

forwarded them to other Resolute executives. Guertin Decl. ¶¶ 3, 4. The Implementing

Instructions focused on the newly formed partnership between AAFES and FMWRC and its

effort to create an integrated strategy to manage Personal Information Services. Id. at Ex. B

(Version 3.6, Jan. 21, 2010 Implementing Instructions); see also AR 333-34 (Version 3.9, May

10, 2010 Implementing Instructions). The annexes to the Jan. 21, 2010 Implementing

Instructions Mr. Guertin located online included: (1) the 2009 February MOU between AAFES

and FMWRC on Personal Information Services, (2) an explanation of the roles and

responsibilities of FMWRC-appointed telecommunications operations manager and FMWRC-

assigned business manager and contracting officer, and (3) a sample statement of work for

Personal Information Services. Guertin Decl. 21-32. The annexes to the May 10, 2010 version

of the Implementing Instructions also included the 2009 December MOA between FMWRC and

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AAFES and the April 6, 2010 memorandum from the Army’s Assistant Chief of Staff for

Installation Management to all Army bases regarding Personal Information Services. AR 358-

63. On March 3, 2010, Mr. Guertin again accessed the Implementing Instructions and forwarded

them to two Resolute executives. Guertin Decl. ¶ 5.

Mr. Evard, Executive Vice President of CCS, testified in a declaration that CCS did not

obtain the Implementing Instructions prior to June 18, 2010, and that he personally became

aware of the Implementing Instructions on October 14, 2010, after proposals were submitted,

“while performing research on a matter unrelated to this litigation.” Third Evard Decl. ¶¶ 5(1),

(3). Mr. Evard “did not review the document in detail, and did not review the Annexes at all,

until mid-December when [CCS was] preparing the Complaint in this action.” Id.

The Proposals

AAFES received six proposals. AR 1501. 5 CCS proposed to use ARMP for some of its

existing infrastructure needs, stating it had “plans and the necessary partnerships, including

ARMP, in place to roll services out to all locations by June 30, 2011.” AR 713 (Tab 13)

(emphasis omitted). The proposal indicated that CCS would self-deploy many of the networks

and infrastructure but that ARMP would be a “deployment partner” at 18 mandatory bases. AR

830-834 (Tab 13). In its proposal, CCS stated it chose to limit ARMP’s role because of concerns

over the availability of ARMP’s infrastructure. AR 804 (Tab 13).

CCS proposed a [ * * * ] AAFES commission for internet services at four of the five

geographic locations -- except for the Alaska region. AR 843-49 (Tab 13). According to CCS’

pro forma Operating Statements, CCS projected [ * * * * * ] in combined internet sales from the

Western, Hawaii, Central, and Eastern regions, giving AAFES an estimated commission of [ * *

* * * * ] for the five-year period. AR 857 (Tab 13); see AR 858-63 (Tab 13). CCS’ pro forma

Operating Statements did not provide its estimated penetration rate, i.e., the estimated percentage

of the base population that would pay for hourly, daily, weekly, and monthly internet service

plans. AR 857 (Tab 13); see AR 858-63 (Tab 13).

Resolute also submitted a timely proposal for all geographic regions. See AR 464-709

(Tab 14). Resolute divided the mandatory military bases into three groups: Group A -- locations

with an existing and operational ARMP network without a service provider, Group B -- locations

with an existing but nonoperational ARMP infrastructure without a service provider, and Group

C -- locations with an existing provider with contracts expiring in 2011. AR 535-42 (Tab 14).

For Group A locations, Resolute proposed partnering with ARMP to transition existing services

to Resolute. AR 535 (Tab 14). At Group B locations, Resolute planned to partner with ARMP

to make services operational on ARMP’s existing infrastructure. AR 538 (Tab 14). For Group C

locations, Resolute would partner with ARMP when available. AR 540-42 (Tab 14). Resolute

did not expressly reference a “subcontract” with ARMP, but called its relationship with ARMP a

5

The record only contains the proposals of Resolute, CCS, and NetNearU. AR 464-881

(Tabs 13-14), 909-1010 (Tab 15).

13

partnership and referred to ARMP as its “preferred vendor.” AR 466-67, 535, 538, 540, 619,

662, 664 (Tab 14).

Regarding fees, Resolute assumed an average monthly penetration rate of [ * * * * ] in

2011 on fully built-out mandatory bases, but applied a [ * ] discount to its estimated penetration

rates to account for competition from existing franchises (in locations with provider contracts

expiring in 2011). AR 686-87 (Tab 14); see AR 540-42 (Tab 14). Resolute’s pro forma

Operating Statements reflected [ * * * * * ] commission [ * * * * ] for AAFES, an [ * * * * * * *

* * * * * * * * * * * * * * * * * * * * * * * * * * * ]. AR 687 (Tab 14). Resolute projected

internet sales of [ * * * * * * ] for all geographic regions [ * * * * * * * * * * * ]. AR 688 (Tab

14). This translated into commissions [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

* * * * * * * * * * * * * * * * * * * * * * * * ]. AR 688-89 (Tab 14); see AR 687 (Tab 14).

The Technical Evaluation

The Source Selection Committee was comprised of five voting individuals, and each

member used individual score sheets when conducting the technical evaluations. AR 1248-1499,

1519; see 7935, 7141. While all voting members of the Committee provided comments

justifying their scores, not all used the prescribed comment codes -- significant strength, strength,

significant weakness, weakness, clarification, and risk. AR 1248-1499. For example, when

scoring CCS for past performance, one evaluator wrote: “10+ years in internet business, worked

[with] [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ], has

experience working on a military base.” AR 1271. Individual evaluation scores were then

modified based on the Source Selection Committee’s consensus discussion. AR 1248-1499.

These modifications were made either directly on score sheets, or were reflected as differences

between the numerical scores listed on individual score sheets and the final Source Selection

Committee Spreadsheet reflecting the consensus numbers. See, e.g., AR 1270-73 (an evaluation

team member’s score sheets for CCS, noting changes in factor scores made after the discussion);

AR 1328-33 (an evaluation team member’s score sheets for CCS highlighting several large point

increases from the original scores).

Below is a summary of the changes between the initial individual scores and the Source

Selection Committee consensus scores for CCS’ and Resolute’s proposals for internet services:

Individual Source Selection Committee Member Scores for CCS

Individual Scores Pre Consensus Meeting Individual Scores Post Consensus Meeting

Evaluation Factor

JT DL AM MK MV JT DL AM MK MV

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Products

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Portability

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Marketing

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Technical Design

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Scalability

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Standards

14

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Speed to Market

Customer Account

Service [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Customer Care and

Customer Satisfaction [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Past Performance

Business

Understanding and

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Reporting

AR 1228, 1248-53, 1268-73, 1290-95, 1308-13, 1328-33.

Individual Source Selection Committee Member Scores for Resolute

Individual Scores Pre Consensus Meeting Individual Scores Post Consensus Meeting

Evaluation Factor

JT DL AM MK MV JT DL AM MK MV

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Products

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Portability

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Marketing

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Technical Design

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Scalability

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Standards

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Speed to Market

Customer Account

Service [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Customer Care and

Customer Satisfaction [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Past Performance

Business

Understanding and

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Reporting

AR 1230, 1349-54, 1369-74, 1389-94, 1407-12, 1427-32.

The individual scores were then weighted for each evaluation factor as follows:

CCS’ Weighted Scores for Internet Resolute’s Weighted Scores for Internet

Evaluation

Factor JT DL AM MK MV Avg JT DL AM MK MV Avg

Products [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

(15%)

Portability [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

(10%)

Marketing [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

(5%)

Technical [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Design (15%)

15

Scalability [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

(10%)

Standards [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

(10%)

Speed to [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Market (10%)

Customer

Account [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Service (5%)

Customer

Care and

Customer

Satisfaction [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

(5%)

Past

Performance [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

(10%)

Business

Understanding

and Reporting [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

(5%)

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

TOTAL:

AR 1228, 1230.

The Source Selection Committee Report ranked each offeror based on its raw score for

internet services. AR 1525 (Table 2). Resolute ranked first in all factors except portability, a

factor of moderate importance, where it ranked second. AR 1520, 1526. CCS ranked [ * * * * *

****************************************************

****************************************************

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ]. AR 1521, 1526.

The following chart compares the scores of Resolute and CCS for each factor:

Evaluation Factor Resolute Score CCS Score

[***] [***]

Products

[***] [***]

Portability

[***] [***]

Marketing

[***] [***]

Technical Design

[***] [***]

Scalability

[***] [***]

Standards

[***] [***]

Speed to Market

Customer Account Service [***] [***]

Customer Care and Customer Satisfaction [***] [***]

[***] [***]

Past Performance

[***] [***]

Business Understanding and Reporting

AR 1526.

16

The Source Selection Committee also ranked the proposals in terms of total average

weighted scores for internet. AR 1525. Resolute’s total average weighted score was [ * * ]. Id.

CCS’ total average weighted score was [ * * * ]. Id. Overall, Resolute ranked first for internet

services and CCS ranked [ * * ]. Id. Regarding Resolute, the Source Selection Committee

Report stated:

With the exception of the corporate financial position, this is clearly the best

proposal.

. . . Resolute has strong, flexible product options with ample bandwidth and value

enhancements to offer customers. Network design and options for providing

service are robust, leveraging [its] extensive experience with AAFES. Resolute

consistently presented superior solutions to all factors requested within the RFP.

AR 1520-21. The Source Selection Committee Report noted that CCS’ proposal “scored well”

and was “found to be a very viable solution.” AR 1521. The Report noted that “[CCS was]

financially strong, provide[d] a strong product offering, [had] substantial experience,” and

provided “aggressive monitoring of [the] network.” Id.

The Source Selection Committee Report listed strengths and weaknesses for each offeror

compiled from the evaluators’ individual comments. AR 1533-1540. For Resolute, the overall

strengths were:

• [************************************]

• [****************]

• [*****************************************

**********************]

• [*******************************]

• [*********************************]

• [********************]

• [*************************************]

• [*****************************************

*******************]

• [*****************************************

****]

• [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * *

************************************]

17

• [********************]

• [ * * * * * * * * * * * * * ].

AR 1533-34. For Resolute, the overall weaknesses were:

• [****************]

• [****************************]

• [ * * * * * * * * * * * * * * * * * * * * * * * * * ].

AR 1533.

For CCS, the overall strengths were:

• [*********************************]

• [*********************************************

****]

• [*********************************************

*****]

• [****************]

• [**************************]

• [*************************]

• [******************************]

• [*********************************************

*********************]

• [**********************]

• [*************************]

• [* * * * * * * * * * * * * * * * * * * * * * ]

• [*********************************************

*******]

18

• [*********************************************

********]

• [**********************]

• [ * * * * * * * * * * * * ].

AR 1535-36. For CCS, the overall weaknesses were:

• [*********************************************

*********]

• [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ].

Id.

The Fee Evaluation

CCS and Resolute proposed the following prices and fee commissions for internet

services:

CCS’ Fee Proposal 6

Group Price for Type of Internet Service

Pre-paid monthly

Pre-paid hourly Pre-paid daily Pre-paid weekly (optional)

[***] [***] [***] [***]

Alaska

[***] [***] [***] [***]

Eastern

[***] [***] [***] [***]

Central

[***] [***] [***] [***]

Western

[***] [***] [***] [***]

Hawaii

AR 714 (Tab 13).

Resolute’s Fee Proposal 7

Group Price for Type of Internet Service

Pre-paid hourly Pre-paid daily Pre-paid weekly Pre-paid monthly

[***] [***] [***] [***]

Alaska

[***] [***] [***] [***]

Eastern

[***] [***] [***] [***]

Central

6

• CCS proposed a [ * * * ] fee to AAFES for four regions. AR 843-49 (Tab 13).

7

• Resolute proposed an [ * * * ] fee to AAFES for all regions. AR 687.

19

[***] [***] [***] [***]

Western

[***] [***] [***] [***]

Hawaii

AR 583 (Tab 14). [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ]. AR 687, 709.1 (Tab 14).

The contracting officer, with assistance from AAFES financial technical expert, Otis

Wright, prepared the Fee Evaluation Report. AR 1512; see 107, 1500. The projected benefit

from CCS’ and Resolute’s price proposals was calculated using the following equation:

Base Population x Price x Fee x Penetration Rate = Projected Income to AAFES

AR 1512. While this equation was not shared with offerors, the solicitation included the base

population for each mandatory military base. AR 410-16; see First Jackson Decl. ¶ 97. The total

base population for all groups except Alaska was 365,822. AR 410-16. Including Alaska, the

total base population was 390,274. Id.

The penetration rate represented the estimated percentage of the base population that

would pay for hourly, daily, weekly, and monthly internet service plans. AR 5876, 5879.

AAFES’ independent consultant, Deloitte LLP, calculated standard penetration rates for these

services based on FMWRC’s historical usage rates in the Continental United States. Id. The

rates used were 1.8% for pre-paid hourly service, 1.1% for pre-paid daily service, 0.8% for pre-

paid weekly service, and 2.9% for pre-paid monthly service. AR 5879. AAFES’ stated purpose

in using these penetration rates was to create a “level playing field,” as these rates were

uniformly applied to all proposals. AR 5880.

For contract years one through five, CCS and Resolute were evaluated as follows:

Resolute: [ * * * * * * * ] estimated total income to AAFES

(or [ * * * * * * * * ] per year)

CCS: [ * * * * * * * ] estimated total income to AAFES

(or [ * * * * * * * * ] per year)

AR 1517. With Alaska factored out to create an even comparison, Resolute would have

provided to AAFES an estimated [ * * * * * * * * ] for contract years one through five, or

[ * * * * * * ] annually. Id.

Overall, the contracting officer found that Resolute offered the “[m]ost attractive Internet

fee proposal for all regions.” AR 1514. Resolute provided the highest fee percentage per region

for all contract years, as well as the highest projected income to AAFES per region for the full

10-year period. Id. CCS’ fee proposal was ranked [ * * * * * * * * * ] for all regions excluding

Alaska. Id. Assuming performance for the entire 10-year period and weighting the first five

years twice as heavily as the last five, the contracting officer determined that CCS would provide

[ * * * * * * * ] in fees to AAFES, whereas Resolute would provide [ * * * * * * ] in fees to

AAFES factoring out Alaska. AR 1513.

20

The Source Selection Decision

On October 7, 2010, the Source Selection Authority made the source selection decision,

based on his assessment of the Source Selection Committee Report, the contracting officer’s fee

analysis, the contracting officer’s recommendation, the solicitation evaluation factors, and a

comparative analysis of the proposals’ strengths and weaknesses. AR 1550-55. The Source

Selection Authority determined that Resolute offered the “best overall value for AAFES across

all regions . . . .” AR 1555. The award determination was contingent upon the contracting

officer’s pending responsibility determination. AR 1555. The Source Selection Authority

acknowledged a concern over Resolute’s indebtedness to AAFES, but noted that Resolute was

making monthly payments to cure deficiencies. AR 1552. As of February 17, 2010, Resolute

owed AAFES [ * * * * * * ] in outstanding fee payments and late charges for sales from October

to December 2009. AR 10529. The source selection decision contained no further information

regarding the debt, but the debt was discussed in Resolute’s responsibility determination. AR

1755, 1757-58.

The Financial Analysis of CCS and Resolute

AAFES conducted a financial evaluation of the offerors in late June 2010. AR Index 2.

Mr. Otis Wright, the Source Selection Committee’s financial technical expert, conducted the

analysis. 8 AR 1754-56; see AR 1500, 1512, 8469-89. Mr. Wright prepared CCS’ evaluation

using “unaudited statements,” because CCS only provided AAFES with the financial information

[***************************************************

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ]. Id. Mr.

Wright noted however that [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

****************************************************

* * * * * * * * * * * * * * * * * ]. Id.

Mr. Wright evaluated Resolute to be [ * * * * * * * * * * * * * * * * * * * * * * * * * * ].

AR 1015. He noted that as of April 2010, a cash flow analysis [ * * * * * * * * * * * * * * * * *

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ]. AR 1015-16. Mr.

Wright raised a concern about Resolute’s continued viability and its ability to “manage its

operating activities through its current financial challenges.” AR 1015. Yet, Mr. Wright

observed that Resolute had a “[ * * * * * * * ] for continued support from its banking partners.”

Id.

As part of the responsibility evaluation, the contracting officer submitted a Request for

Vendor Financial Data/Clearance to initiate financial reviews of Resolute and CCS. AR 5497-

500, 8504-05. Based on the results, Resolute was cleared for [ * * * * ] annually and CCS, for

[ * * * * * * ] annually, not the full $44.8 million contract amount. AR 8504-05, 5499-500.

8

Mr. Wright is described as a financial technical expert and an advisor to the Source

Selection Committee. AR 1500, 1519, 1754; Def.’s Mot. J. AR 15, 53, Aug. 8, 2011;

Intervenor’s Statement of Facts 25, Aug. 8, 2011; Def.’s Supp. Br. 10-11, Apr. 16, 2012. Mr.

Wright holds the title of Financial Analyst III in the office of AAFES Advanced

Telecommunications Initiatives. AR 8489.

21

In performing the responsibility determination, the contracting officer confirmed that as

of August 2010, Resolute maintained an account with [ * * * * * * ] with an average balance of

[ * * * * * * * * * * * * ] and that the bank considered Resolute’s rating [ * * * * * * * ]. AR

8535. The contracting officer also confirmed that Resolute maintained an account with Bank of

America with an average balance of [ * * * * * * * * ]. AR 8536.

During the responsibility determination, which was performed from May to early

November 2010, AAFES was aware that Resolute would owe [ * * * * * * * * * * * * * * * * * *

* * * * * * * * * * ] as of June 2010 under a long-term [ * * * * ] debt obligation. AR 1015,

1755. The contracting officer received a letter dated August 11, 2010, from [ * * * * * ]

clarifying the status of this loan:

This letter is in response to Resolute Partners, LLC’s . . . request . . . [ * * * * * *

* * ] for its reply to you regarding the [[ * * * * ] loan] status. [Resolute] [ * * * *

*******************************************]

and became effective March 2, 2010 which expired August 1, 2010. The

restructure of the company’s debt is subject to the results of the various contracts

including the RFP currently under your review.

***

It is [ * * * * * * ] intent to support these initiatives and those to come as the

relationship between AAFES and Resolute Partners continues to flourish.

AR 8539.

In mid-September, as part of the ongoing financial analysis, the contracting officer

contacted [ * * * * * * ] to gain additional information regarding the status of the debt and

Resolute’s financial future with [ * * * * * ]. AR 8540-41. The bank responded:

Resolute is already stable and is performing per its agreed loan terms with [ * * *

* * * ]. A long-term structure will be finalized in a maximum of 60 days, subject

to the final details received on its various existing contracts and several other

outstanding RFP awards that are anticipated very soon. Resolute’s loan balances

are in [ * * * * * * * * * * * ] . . . .

***

[ * * * * * ] will continue to support Resolute and feels very comfortable with

Resolute’s ability to perform on their various contracts. In fact, their performance

will only be enhanced with the awarding of this RFP.

AR 8540 (emphasis omitted).

Mr. Wright recommended that AAFES proceed with an award to Resolute based on

several factors. AR 1220. First, he found Resolute would see an increase in sales due to the

22

award of the contract. Id. He noted that in 2009, Resolute had [ * * * * * ] in sales, considering

the sales from Resolute’s current locations and projected sales from locations in Resolute’s offer.

AR 1220, 1223. He estimated sales for each year of the initial five-year contract period as

[ * * * * * * ] for 2011, [ * * * * * * ] for 2012, [ * * * * * * ] for 2013, [ * * * * * * ] for 2014,

and [ * * * * * * ] for 2015. AR 1223. Mr. Wright’s forecast indicated that once Resolute began

full operation under the contract, its net income would increase by [ * * * ] between 2011 and

2012, and estimated that Resolute could be debt free by 2014. AR 1220.

Second, Mr. Wright remarked that AAFES’ fee commission payments could be booked

as “Cost of Sales,” such that the payment would be paid against revenue before other operating

expenses were paid. Id.

Third, Mr. Wright considered Resolute’s “Book Value,” and calculated that an award to

Resolute would improve its net present value from [ * * * * * * ] in 2010, to [ * * * * * * ]

through 2015, because of its ability to generate sales and net income. AR 1221. Mr. Wright

found that the rate of return from Resolute’s operation under the contract would exceed its cost

of capital, thereby increasing its net present value, and that Resolute’s strengthened financial

position would attract additional capital. Id.

Fourth, Mr. Wright considered that Resolute would “need [ * * * * * * * ] over the first

two years of the contract period for continuing operations and contract execution,” and that it

was likely that [ * * * * * * ] would “provide as much funding as needed to execute the contract

requirements,” given the bank’s vested interest in Resolute’s continued success. AR 1221-22.

Mr. Wright noted that Resolute had previously raised [ * * * * * * ] and estimated that by 2014,

funds internally generated would be [ * * * * * ], exceeding the projected funding needs. AR

1222.

The Responsibility Determination

On November 8, 2010, the contracting officer completed her Determination of

Responsibility. AR 1753-59. The Federal Acquisition Regulation (“FAR”) does not apply to

AAFES. AR 381. According to governing AAFES policy, Exchange Service Purchasing

Policies (ESR Policy) 65-1, a responsible prospective contractor must meet seven minimum

standards. AR 8020 (ESR Policy 65-1 ¶ 4-46(c)). At issue in this case are two standards -- that

a prospective contractor must (1) have adequate financial resources, or the ability to obtain such

resources, as required during performance, and (2) have a record of satisfactory performance “or

be able to document beyond reasonable doubt that any prior problems that created a marginal or

unsatisfactory situation have been eliminated.” Id. 9

9

These AAFES standards are similar to FAR requirements. The first standard parallels

FAR 9.104-1(a) (requiring that the offeror “[h]ave adequate financial resources to perform the

contract, or the ability to obtain them”) and the second is similar to 9.104-1(c) (requiring that the

offeror “[h]ave a satisfactory performance record”).

23

Financial Resources

In analyzing the adequacy of Resolute’s financial resources, “or [the] ability to obtain

such resources, as required during performance of the contract,” the contracting officer noted in

her Determination of Responsibility:

1. A clear history;

2. Secured financing;

3. No serious red flags of financial risk of non-payment; and

4. [Dun & Bradstreet] payment performance history:

a. 12-Month [Dun & Bradstreet] PAYDEX Score averages 70 which

mean payment to suppliers average 15 days beyond terms;

b. [3-Month Dun & Bradstreet] PAYDEX Score averages 76 which mean

payments to suppliers average 6 days beyond terms; and

c. A credit appraisal rating of [“3=Fair.”] These ratings indicate timely

payments that average 15 days beyond terms.

AR 1754-55.

With respect to bank references, the contracting officer found that Resolute’s overall

bank and credit rating were considered satisfactory. AR 1755. [ * * * * * * * * * * * * * * * * *

****************************************************

****************************************************

****************************************************

****************************************************

****************************************************

****************************************************

* * * * * * * * * * * * * * * * * * * * * * * * ]. Id.

With respect to Resolute’s financial projections, the contracting officer, relying on Mr.

Wright’s analysis, determined that Resolute had suffered declining revenues in 2010, but that the

award of this contract would significantly improve Resolute’s financial outlook. AR 1754-56.

The contracting officer accepted Mr. Wright’s Book Value analysis and his finding that the

integration of revenue from the contract award would allow Resolute to achieve a net present

value of [ * * * * * * ] based on projections through the 2015 calendar year. AR 1756.

Past Performance

As part of Resolute’s responsibility determination, the contracting officer identified two

past performance issues with Resolute’s 2005 contract with AAFES to provide internet café and

other internet access at various locations in Kuwait, Germany, and the Continental United States.

AR 1757. The first was a warning letter from AAFES for a service disruption dated October 16,

2009, at a European military base. AR 1757, 8497-98. The contracting officer stated: “The

issue was resolved in a timely manner by the contractor and service was restored the same day.”

AR 1757. The second issue was “a cure demand,” issued by AAFES on January 13, 2010, for

the nonpayment of $199,740 in fees under the 2005 contract. AR 1757-58. The contracting

24

officer found that Resolute was taking corrective action to cure this debt. AR 1758. AAFES and

Resolute entered into a debt repayment plan for 12 monthly payments of [ * * * ] effective June

1, 2010, so that by the time of the responsibility determination on November 8, 2010, the

outstanding debt had been reduced from $[ * * * ] to $[ * * * ]. Id. In spite of this debt to

AAFES, Resolute’s 2005 contract had been extended for an additional year for all Continental

United States locations, and for three years for all locations outside the Continental United

States. Id. The contracting officer stated, “To date, [Resolute] continues to provide satisfactory

performance and submit payments by the required due date.” Id. Ultimately, on November 8,

2010, the contracting officer determined that Resolute was responsible and the Source Selection

Authority concurred with this determination. AR 1759.

The Notice of Award and Debriefing

On November 9, 2010, AAFES notified CCS of the award to Resolute, and conducted

CCS’ oral debriefing on December 1, 2010. AR 1760; see AR 1762. During the debriefing,

AAFES indicated that FMWRC had been represented on the Source Selection Committee and

that its “personnel [had] participated with AAFES in developing the requirements for this Best-

Value effort,” and that while ARMP was not represented on the Source Selection Committee,

“ARMP personnel [had] participated with AAFES in developing the requirements for this Best-

Value effort.” AR 1774. AAFES also notified CCS that the pro forma Operating Statements

were used as part of the financial analysis to assist in the technical and fee evaluations. AR

1775.

Discussion

Jurisdiction and Standing

This Court has jurisdiction over this action pursuant to the Tucker Act, 28 U.S.C.

§ 1491(a) which empowers the Court “to render judgment upon any claim against the United

States founded . . . upon any express or implied contract with the United States. . . .” The Act

continues: “For the purposes of this paragraph, an express or implied contract with the Army

and Air Force Exchange Service . . . shall be considered an express or implied contract with the

United States.” 28 U.S.C. § 1491(a) (2006). “This jurisdictional grant extends to suits brought

by disappointed bidders . . . challenging the proposed award of contracts based on alleged

improprieties in the procurement process.” Cent. Ark. Maint., Inc. v. United States, 68 F.3d

1338, 1341 (Fed. Cir. 1995) (citing CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1572-73

(Fed. Cir. 1983)). “Jurisdiction in these cases arises from an alleged breach of ‘an implied

contract to have the involved bids fairly and honestly considered.’” Id. (quoting United States v.

John C. Grimberg, Co., 702 F.2d 1362, 1367 (Fed. Cir. 1983) (en banc)). The government

breaches this implied contract if its consideration of offers is found to be arbitrary, capricious, or

otherwise not in accordance with law. Id.

In 1996, Congress enacted the Administrative Dispute Resolution Act (“ADRA”), which

provides for judicial resolution of all bid protests in a single court, the Court of Federal Claims,

under the standard of review enunciated in the Administrative Procedure Act (“APA”). Pub. L.

25

No. 104-320, 110 Stat. 3870 (codified as amended at 28 U.S.C. § 1491(b) (2000)). Under these

APA standards, the Court shall:

(2) hold unlawful and set aside agency action, findings, and conclusions found to

be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of

statutory right;

(D) without observance of procedure required by law;

***

In making the foregoing determinations, the court shall review the whole record

or those parts of it cited by a party, and due account shall be taken of the rule of

prejudicial error.

5 U.S.C. § 706 (2006).

ADRA grants this Court exclusive jurisdiction over any “action by an interested party

objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to

a proposed award or the award of a contract or any alleged violation of statute or regulation in

connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1) (2006)

(emphasis added). Because AAFES, the entity that conducted this procurement, is not a federal

agency, jurisdiction is not granted under § 1491(b). However, the Tucker Act bestows

jurisdiction over any claim founded upon any implied-in-fact contract with AAFES; ADRA did

not diminish the jurisdictional grant in § 1491(a). Res. Conservation Grp., LLC v. United States,

597 F.3d 1238, 1245-46 (Fed. Cir. 2010) (holding that implied-in-fact contract jurisdiction under

28 U.S.C. § 1491(a)(1) remains viable for protests where 28 U.S.C. § 1491(b)(1) does not

provide a remedy); see also L-3 Commc’ns Integrated Sys., L.P. v. United States, 94 Fed. Cl.

394, 396-97 (2010); FAS Support Servs., LLC v. United States, 93 Fed. Cl. 687, 694 (2010).

CCS has standing as a disappointed bidder because it submitted a proposal.

Is a Protest Under § 1491(1)(a) Properly Resolved Under Motions for Judgment on the AR

or Motions for Summary Judgment?

As a threshold matter, the parties disagree on the procedural mechanism for resolving this

§ 1491(a) protest. Plaintiff filed a motion for summary judgment, while Defendant and

Intervenor filed motions for Judgment on the Administrative Record. 10 CCS points out that no

10

Defendant and Intervenor also filed motions to dismiss claiming that CCS lacked the

financial ability to perform the contract and thus lacked standing as an interested party. The

record indicates that CCS has standing. See AR 1521 (Source Selection Committee Report

26

rule requires that all bid protests, including those brought under 28 U.S.C. § 1491(a), be resolved

on motions for judgment on the AR. Pl.’s Supplemental Br. 3. Defendant and Resolute contend

that the case is appropriately resolved via motions for judgment on the administrative record

because bid protests brought under Section 1491(a) -- while predicated on breach of the implied

duty of fair dealing -- are not a different species of protest than those brought under § 1491(b)

and therefore should not require a different process. The Federal Circuit has not yet addressed

this procedural issue. See Creation Upgrades, Inc. v. United States, 417 F. App’x 957, 959 (Fed.

Cir. 2011) (“Since our decision in Resource Conservation, we have not decided whether bid

protest cases brought under § 1491(a)(1) of the Tucker Act are to be decided on the

administrative record, and we see no need to decide that question in this case.”).

Plaintiff’s chosen procedure, summary judgment, is a “short cut” to resolving a case by

eliminating the need for fact-finding and trial. In ruling on summary judgment motions, the

Court does not make findings of fact. Rather, the Court assesses whether any material facts are

genuinely in dispute and, if they are not, resolves solely questions of law. If there are genuine

issues of material fact, the Court must deny motions for summary judgment, and the parties

proceed to trial.

In contrast, under the regime of motions for judgment on the AR, governed by Rule 52.1,

the Court makes findings of fact based upon the administrative record. As the Federal Circuit

explained in Bannum, Inc. v. United States, the trial court must make factual findings “from the

record evidence as if it were conducting a trial on the record.” 404 F.3d 1355, 1357 (Fed. Cir.

2005). Then, the Court must determine if the agency’s conduct violated the law. Id. In adding

Rule 52.1 in 2006, this Court expressly acknowledged that “[s]ummary judgment standards are

not pertinent to judicial review upon an administrative record.” RCFC 52.1, Rules Committee

Notes, 2006 Adoption (citing Bannum, 404 F.3d at 1355-57).

Despite the different procedural mechanisms, the standard of review for resolving bid

protests is substantially the same whether the protest is brought under § 1491(a) as a breach of an

implied contract or as a traditional bid protest under § 1491(b). In § 1491(a) protests, the Court

reviews whether the agency’s conduct was arbitrary and capricious. See Keco Indus., Inc. v.

United States, 192 Ct. Cl. 773, 783-84 (1970) (“[A]rbitrary and capricious action on the part of

the Government . . . clearly is a violation of the rule laid down in [Heyer Products Co. v. United

States, 135 Ct. Cl. 63 (1956)] that bids should be fairly and honestly considered.”); Wetsel-

Oviatt Lumber Co. v. United States, 40 Fed. Cl. 557, 565 (1998) (“An invitation for bids . . .

carries an implied contractual obligation to fairly and honestly consider all responsive bids. The

government breaches this implied contract if its consideration of the bids is found to be arbitrary,

finding CCS’ proposal “to be a very viable solution” and identifying CCS as financially strong,

with a strong product offering, substantial experience, and aggressive monitoring of the

network); Ala. Aircraft Indust., Inc.-Birmingham v. United States, 83 Fed. Cl. 666, 685 (2008)

(stating that “DCAA’s audit report, combined with payments of Alabama Aircraft expects to

earn on the KC–135 PDM contract, strongly support the conclusion that if awarded the contract,

Alabama Aircraft would have sufficient financial resources . . . .”), rev’d on other grounds, 586

F.3d 1372 (Fed. Cir. 2009).

27

capricious, without rational basis, or an abuse of discretion.” (citations omitted)); see also

Prineville Sawmill Co. v. United States, 859 F.2d 905, 909 (Fed. Cir. 1988); Southfork Sys., Inc.

v. United States, 141 F.3d 1124, 1132 (Fed. Cir. 1988); Keco Indus., Inc. v. United States, 203

Ct. Cl. 566, 574 (1974)); L-3 Commc’ns, 94 Fed. Cl. at 397 n.3; FAS Support Servs., 93 Fed. Cl.

at 694. Under 28 U.S.C. § 1491(b)(4), the Court employs the standards set forth in the APA, 5

U.S.C. § 706, which requires the Court to set aside agency action found to be “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.”

In the instant case, a determination of whether the agency’s conduct was arbitrary and

capricious can be readily made utilizing the AR. Defendant has filed an ample administrative

record, and Plaintiff has invoked that record, seeking to add declarations from its executive vice

president and consultant. In short, all parties rely on facts in the AR in support of their requests

for judgment with very limited supplementation. As such, the Court treats Plaintiff’s motion for

summary judgment as a motion for judgment on the AR.

The Scope of the Record and Defendant’s Motion to Strike

CCS seeks to support its protest with five declarations, three from Timothy Evard,

Executive Vice President of CCS, and two from Jimmy J. Jackson, a consultant, and the

Government moves to strike all these declarations. In resolving cross-motions for judgment on

the AR, the Court must assess whether CCS has justified its request to supplement the AR.

Axiom Res. Mgmt., Inc. v. United States, 564 F.3d. 1374, 1378-80 (Fed. Cir. 2009).

Mr. Evard’s Declarations

Mr. Evard’s first declaration, filed with CCS’ complaint, addresses: (1) CCS’ past

performance in providing information services, (2) the content of the RFP, (3) the content of

CCS’ proposal, and (4) the substance of meetings not otherwise described in the record. Evard

Decl. 1-8, Dec. 22, 2010. CCS filed the second Evard Declaration in response to the

Government’s argument that CCS waived its claims that AAFES violated 10 U.S.C. § 2492(a)

and that ARMP’s and FMWRC’s involvement in this procurement created improper conflicts of

interest. In this second declaration, Mr. Evard described CCS’ understanding of ARMP’s role

and network build-out plans at the time it submitted its proposal. Evard Decl. 1-8, Aug. 22, 2011

(“Second Evard Decl.”).

Mr. Evard filed a third declaration in response to a Court order asking the parties whether

the Implementing Instructions were available to offerors prior to June 18, 2010, where that

information was made available, and whether CCS had knowledge of this information. 11 Mr.

Evard answered that this information was not available before June 18, 2010, that he was not

aware when or where it was made available, and that CCS did not have knowledge of this

information before June 18, 2010.

11

In its response, Defendant stated that the Implementing Instructions were available to

offerors prior to June 18, 2010, the information was made available online at a FMWRC web

address, and that CCS either knew or should have known the information.

28

To resolve the waiver issue, the Court must consider what CCS knew regarding ARMP’s

role and when CCS learned it -- matters not in the AR. As such, the Court supplements the

record with the third Evard declaration. Further, the Court supplements the record with

information on CCS’ knowledge of ARMP’s role in the procurement as reflected in Paragraphs

12 and 13 of Mr. Evard’s first declaration (discussing CCS’ bridge contract and communications

with ARMP and AAFES concerning ARMP’s future role) and Paragraphs 1 through 11 of Mr.

Evard’s second declaration (discussing CCS’ interpretation of the RFP, information presented at

Industry Day, and communications with ARMP and AAFES concerning ARMP’s future role).

The remainder of these two declarations either restates information in the solicitation and in

Resolute’s and CCS’ proposals or contains Mr. Evard’s personal opinion of Resolute’s proposal.

Mr. Evard’s opinion of Resolute’s proposal is not relevant, and his restatement of material in the

record is unnecessary and duplicative. See Arcow Corp. of Am. v. United States, 96 Fed. Cl.

270, 280 (2010) (excluding portions of a declaration because it merely detailed information

already contained in the record); cf. East West, Inc. v. United States, 100 Fed. Cl. 53, 57 (2011)

(excluding declaration that provided “information concerning the reaction of plaintiff to certain

agency communications”).

Mr. Jackson’s Declarations

Mr. Jackson is a consultant CCS retained to review AAFES’ responsibility

determination. 12 In his first declaration, filed with CCS’ motion for summary judgment, Mr.

Jackson addresses the finance-related aspects of Mr. Wright’s reviews and the contracting

officer’s and the Source Selection Committee’s decisions. His second declaration, filed in

support of CCS’ response to the Government’s motion for judgment on the AR, addresses

Resolute’s financial responsibility and AAFES’ calculation of the technical scores.

Mr. Jackson opines that:

• Resolute did not have adequate financial resources and that “the contracting

officer should have concluded that Resolute was not financially responsible.”

Jackson Decl. ¶¶ 9, 10, July 18, 2011 (“First Jackson Decl.”); Jackson Decl. ¶¶ 9-

11, Aug. 22, 2011 (“Second Jackson Decl.”);

• the assumptions in Mr. Wright’s financial models overstated Resolute’s ability to

obtain financing, omitted interest-related expenses, inflated Resolute’s sales and

revenues, and understated expenses, leading to an erroneous conclusion about

Resolute’s financial outlook. First Jackson Decl. ¶¶ 41-67; and

12

Mr. Jackson has evaluated financial and cost analyses in more than 185 bid protests

and has been accepted as an expert by the Court of Federal Claims and Federal District Courts.

First Jackson Decl. ¶¶ 4(d), 4(g). He has two masters degrees, one in Business Administration

from Southern Illinois University and one in Science in Management from the Massachusetts

Institute of Technology’s Sloan School of Management. Id. at ¶ 3(b)-(c).

29

• the revenue comparison that the Source Selection Committee relied upon

improperly used a normalized penetration rate not disclosed to offerors instead of

evaluating the projected financial benefits associated with each offer. Id. at ¶¶ 90-

99.

Mr. Jackson also analyzes the scoring of the technical evaluation and conducts his own

comparative analysis of portions of CCS’ and Resolute’s proposals, assigning different subfactor

scores. Second Jackson Decl. ¶¶ 3-4. In addition, Mr. Jackson questions the comparison of

Resolute’s and CCS’ proposals claiming AAFES failed to consider that CCS did not include

Alaska in its proposal, and performs his own analysis acknowledging this circumstance. Id. at

¶¶ 9-11. Finally, Mr. Jackson critiques the contracting officer’s past performance evaluation

because the agency only used a three-point scale -- Strong, Modest, and Weak -- “without

having a fourth possible score for Unacceptable,” a technique that in his view “masked the high

risk of Resolute’s financial performance.” First Jackson Decl. ¶¶ 85, 86.

As the United States Court of Appeals for the Federal Circuit recognized in Axiom

Resource Management, Inc. v. United States, the parties’ ability to supplement the AR in a bid

protest is limited, and the “focus of judicial review of agency action remains the administrative

record, which should be supplemented only if the existing record is insufficient to permit

meaningful review . . . .” 564 F.3d at 1379-81. It is appropriate to supplement the AR when

“technical aspects of the procurement process [would] remain unexplained” without

supplementation or “when necessary for the Court to understand technical or complex

information involved in the challenged procurement.” Guzar Mirbachakot Transp. v. United

States, 104 Fed. Cl. 53, 63-64 (2012) (citations omitted) (supplementing the record with expert

testimony regarding electronic file compression and transmission utilities); Global Computer

Enters., Inc. v. United States, 88 Fed. Cl. 52, 67 (2010) (finding declarations necessary to

illuminate the difference between audit-supporting financial management system services and

mission and administrative support IT services); see also Mike Hooks, Inc. v. United States, 39

Fed. Cl. 147, 158 (1997) (permitting supplementation to enable the Court to understand technical

solicitation language regarding minimum production rates for shoal dredging).

Consistent with these decisions, an expert in this case could have properly explained

complex financial principles and offered an opinion on their impact and application. There is a

fine line though between an expert offering technical analysis -- an acceptable addition to the

record -- and an expert substituting his subjective judgment for that of the Government in areas

not dependent upon complex technical matters. In the instant case, Mr. Jackson crossed that line.

Mr. Jackson proffers his opinion on Resolute’s responsibility predicated on his subjective

evaluation of the record, not on any inscrutable technical matters. See First Jackson Decl. ¶ 12

(stating it was “irrational” for the contracting officer to find Resolute financially responsible

when it was “cleared for less than[ * * ] percent of the contract amount”); ¶ 17 (claiming the

contracting officer should have found Resolute’s Dun & Bradstreet Report to have been based on

outdated information); ¶ 25 (opining that Resolute’s financial statements support only an

unfavorable financial responsibility determination); ¶¶ 26-40 (questioning the contracting

officer’s interpretation of letters and communications from [ * * * * * ], and speculating that

Resolute was in “default” on its loan); ¶ 72 (stating that Mr. Wright’s financial model provides

30

no “rational basis” for a favorable responsibility determination). Mr. Jackson’s opinion does not

provide technical clarification necessary for effective judicial review. Cf. Allied Tech. Grp., Inc.

v. United States, 92 Fed. Cl. 226, 231 (2010) (refusing to consider proffered declarations because

the AR was not too complex for the Court to review).

Similarly, Mr. Jackson’s critique of AAFES’ evaluations are inappropriate

supplementation. See First Jackson Decl. ¶ 85 (stating that AAFES’ evaluation criteria for risk

scoring should have included an “unacceptable” score); see also Second Jackson Decl. ¶¶ 9-12

(presenting how Mr. Jackson would have calculated the AAFES fee percentages). Expert

opinions that purport to assess an agency’s procurement decisions are not proper

supplementation of the AR. In PlanetSpace Inc. v. United States, the Court rejected declarations

proffered by the plaintiff because they essentially “attack[ed] the merits of [the agency’s] award

decision.” 90 Fed. Cl. 1, 6 (2009). Although the PlanetSpace plaintiff claimed that the

declarations there were a technical aid to explain the pricing differences among proposals, the

Court found that the declarations re-argued the merits of the parties’ financing plans and

amounted to a “comparative assessment of the strengths and weaknesses of the proposals . . . .”

Id. at 8. So too, Mr. Jackson questions the correctness of the contracting officer’s and Source

Selection Committee’s conclusions. Whether or not the contracting officer and Source Selection

Committee and Source Selection Authority made “reasonable” decisions on these procurement

matters is a determination for this Court and is not a proper subject for expert opinion. Id.

In Al Ghanim Combined Group Company General Trading & Contracting W.L.L. v.

United States, the Court excluded two declarations by Mr. Jackson in a bid protest. 56 Fed. Cl.

502, 504 (2003). In challenging the pricing evaluation, Mr. Jackson opined that the agency had

failed to perform a “price realism analysis” that would have revealed that the awardee’s pricing

was unrealistic. Id. at 511. The Court excluded Mr. Jackson’s declarations because they did not

“fill a gap in the record” or provide necessary clarification, stating:

Even if characterized as expert testimony, Mr. Jackson’s opinions do not aid the

court in its analysis of plaintiff’s arguments. Admissible expert testimony, as

governed by [FRE] 702, must assist the trier of fact to understand the evidence or

to determine a fact in issue. Plaintiff’s arguments are devoid of complexities that

might require expert assistance, and plaintiff’s counsel is able to explain its

arguments fully without the need of expert testimony.

Id. at 512 (citations and quotation marks omitted). Here, as in Al Ghanim, because Mr. Jackson

re-argues the merits of the Government’s award decision, his declarations are unnecessary for a

full and complete understanding of the issues in the protest.

Waiver Under Blue & Gold in § 1491(a)(1) Protests

Defendant and Intervenor, relying on Blue & Gold Fleet, L.P. v. United States, 492 F.3d

1308, 1315 (Fed. Cir. 2007), seek dismissal of Counts I and II on the ground that CCS knew the

basis for these claims prior to the conclusion of the bidding process, but did not raise them until

after award. In Count I, CCS claims that Defendant violated 10 U.S.C. § 2492a by allowing

ARMP to either (i) compete for a contract to provide Personal Information Services directly to

31

fee-paying users, or (ii) itself provide Personal Information Services directly to fee-paying users.

In Count II, CCS claims that ARMP’s role as a subcontractor and FMWRC’s participation on the

Source Selection Committee and its involvement, along with ARMP’s, in shaping the

solicitation, constituted organizational conflicts of interest.

Is the Blue & Gold Waiver Doctrine Limited to § 1491(b) Protests?

In Blue & Gold, the Federal Circuit held “that a party who has the opportunity to object

to the terms of a government solicitation containing a patent error and fails to do so prior to the

close of the bidding process waives its ability to raise the same objection subsequently in a bid

protest action in the Court of Federal Claims.” Id. at 1313. CCS argues that as a matter of law,

the Blue & Gold waiver doctrine only applies to bid protests brought under 28 U.S.C. § 1491(b),

not to protests invoking § 1491(a) jurisdiction, emphasizing the following language in Blue &

Gold:

[A] party who has the opportunity to object to the terms of a government

solicitation containing a patent error and fails to do so prior to the close of the

bidding process waives its ability to raise the same objection afterwards in a

§ 1491(b) action in the Court of Federal Claims.

***

Having recognized a waiver rule in § 1491(b) bid protest actions, we must decide

whether the Court of Federal Claims erred in applying it to this case.

Id. at 1315 (emphasis added).

While Blue & Gold itself concerned a § 1491(b) bid protest, there is nothing in the

decision that limits the waiver rule to bid protests predicated on § 1491(b) jurisdiction. What

drives the waiver rule is the pragmatic recognition that a bidder must object to the terms of a

patently erroneous solicitation while the Government can still remedy the situation. Id. at 1314-

15. The patent ambiguity doctrine as articulated in Blue & Gold is equally applicable in any bid

protest whether brought under § 1491(a) or (b). As the Federal Circuit explained:

[The patent ambiguity] doctrine “was established to prevent contractors from

taking advantage of the government, protect other bidders by assuring that all

bidders bid on the same specifications, and materially aid the administration of

government contracts by requiring that ambiguities be raised before the contract is

bid, thus avoiding costly litigation after the fact.” These reasons . . . apply with

equal force in the bid protest context. In the absence of a waiver rule, a contractor

with knowledge of a solicitation defect could choose to stay silent when

submitting its first proposal. If its first proposal loses to another bidder, the

contractor could then come forward with the defect to restart the bidding process,

perhaps with increased knowledge of its competitors.

32

Id. at 1313-1314 (quoting Cmty. Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1580 (Fed.

Cir. 1993)).

There is no reason to disavow the Blue & Gold waiver rule merely because jurisdiction is

predicated on this Court’s general breach-of-contract jurisdiction instead of its more specific bid

protest jurisdiction. To hold otherwise would permit bidders in § 1491(a) protests to do exactly

what the Blue & Gold Court prohibited -- to roll the dice and wait to protest if they do not win.

As the Federal Circuit explained:

It would be inefficient and costly to authorize this remedy after offerors and the

agency had expended considerable time and effort submitting or evaluating

proposals in response to a defective solicitation. Vendors cannot sit on their

rights to challenge what they believe is an unfair solicitation, roll the dice and see

if they receive award [sic] and then, if unsuccessful, claim the solicitation was

infirm.

Id. at 1314 (alteration in original) (quoting Argencord Mach. & Equip., Inc. v. United States, 68

Fed. Cl. 167, 175 n.14 (2005)).

The Federal Circuit recently reemphasized that the Blue & Gold waiver rule should be

broadly applied in bid protests in COMINT Systems Corporation v. United States, 700 F.3d 1377

(Fed. Cir. 2012). There, the Court held that the plaintiff waived its right to challenge an

amendment to the solicitation by not protesting before contract award, even though the

amendment was issued after the close of the bidding process. The Federal Circuit expanded Blue

& Gold by applying its reasoning “to all situations in which the protesting party had the

opportunity to challenge a solicitation before the award and failed to do so.” COMINT, 700 F.3d

at 1382. As such, the Federal Circuit extended the time a protestor may file a pre-award protest

from the “close of the bidding process” as articulated in Blue & Gold to any time before award is

made. See also Bannum, Inc. v. United States, 115 Fed. Cl. 257, 274 (2014). The Federal

Circuit recognized that “[t]he same policy underlying Blue & Gold supports it extension to all

pre-award situations.” COMINT, 700 F.3d at 1382.

CCS contends that the Blue & Gold waiver rule should not apply in § 1491(a) protests

because the implied-in-fact contract giving rise to jurisdiction is not formed unless an offeror

submits a proposal, the very act which causes the waiver under Blue & Gold. Thus, CCS posits

that a plaintiff challenging a solicitation under § 1491(a) would have the Hobson’s choice of

either filing a protest prior to submitting a proposal, thus bypassing the requirement for

establishing § 1491(a) jurisdiction, or waiving its ability to protest by submitting a proposal.

Such a narrow and draconian view of the § 1491(a) bid protest process is unwarranted.

CCS’ perceived dilemma was apparently spawned by an overly broad reading of

Motorola, Inc. v. United States, 988 F.2d 113 (Fed. Cir. 1993). CCS misconstrues Motorola to

establish a general principle that submission of a proposal is always required to establish the

implied-in-fact contract necessary for § 1491(a) pre-award protest jurisdiction. While the trial

court in Motorola did articulate that principle, the Federal Circuit, using limiting language in its

affirmance, did not adopt the trial court’s reasoning wholesale. The plaintiff in Motorola filed

33

suit challenging a solicitation as being unduly restrictive and precluding it from submitting a bid.

The Motorola plaintiff based its assertion of implied contract jurisdiction on the Government’s

requests for, and Motorola’s submission of, information to assist the Government in developing

the solicitation. Id. at 114-15. In dismissing Motorola’s complaint for failure to state a claim,

the trial court concluded that “[s]ince there was no bid here, there was no promise; hence, no

basis for finding the existence of a pre-award contract upon which a claim for injunctive relief

can be based.” Id. at 116. 13

In affirming Motorola, while agreeing that no implied contract arose because plaintiff had

not submitted a bid, the Federal Circuit added important qualifiers, stating that Motorola had

“not otherwise met its burden to show that an implied in fact contract existed,” and that

“[o]rdinarily a bid is required to establish that a pre-award implied in fact contract exists.” Id. at

114 (emphasis added) (citation omitted). This language underscores the appellate court’s

recognition that the submission of a bid is not the sine qua non for establishing an implied-in-fact

contract and acknowledges alternatives for “otherwise” establishing the implied-in-fact contract

necessary for pre-award protest jurisdiction. Further, the Federal Circuit expressly limited its

endorsement of the Motorola trial court’s opinion “to the extent consistent with the above”

reasoning. Id.

The Federal Circuit’s refusal in Motorola to restrict the manner in which an implied-in-

fact contract can be formed in the pre-award procurement process setting is consistent with

fundamental principles of contract formation. As the Restatement (Second) of Contracts § 24

teaches, “[a]n offer is the manifestation of willingness to enter into a bargain, so made as to

justify another person in understanding that his assent to that bargain is invited and will conclude

it.” The Government’s manifestation of a willingness to enter a bargain and a vendor’s assent to

that bargain need not be exclusively expressed via a formal bid or proposal in the pre-award

context.

But even if CCS were correct that it had to submit a proposal in order to form an implied-

in-fact contract giving rise to this Court’s jurisdiction, it could still have preserved its rights.

CCS could have protested the terms of the solicitation and in the alternative, timely submitted a

proposal that purported to respond to the allegedly flawed solicitation. In sum, CCS’ effort to

insulate § 1491(a) protests from the Blue & Gold waiver rule fails.

13

In so holding, the Motorola trial court departed from the holdings in Standard

Manufacturing Company v. United States, 7 Cl. Ct. 54 (1984) and Magnavox Electronics

Systems Company v. United States, 26 Cl. Ct. 1373 (1992). In Standard Manufacturing, the

court held that a contractor’s response to government requests for information created an implied

contract that all responses would be fairly and honestly considered, satisfying the jurisdictional

prerequisite for a pre-award bid protest under Section 1491(a). 7 Cl. Ct. at 58-60. Similarly, in

Magnovox, notices of intent to conduct a sole-source procurement published in the Commerce

Business Daily coupled with a contractor’s response that it could perform the work, resulted in

an implied contract to give the contractor’s response honest and fair consideration. 26 Cl. Ct. at

1377-78.

34

CCS Knew Its Grounds of Protest Prior to Award

As explained above, parties who have the opportunity to object to the terms of a

solicitation containing patent errors or ambiguities and fail to do in a timely fashion waive their

ability to subsequently raise the same objections. COMINT, 700 F.3d at 1382; Blue & Gold, 492

F.3d at 1316; Bannum, 115 Fed. Cl. at 273-74.

CCS Waived Its Claim of a Statutory Violation

In Count I, CCS claims that the Government violated 10 U.S.C. § 2492a, which provides:

(a) Limitation.—(1) Notwithstanding section 2492 of this title, the Secretary of

Defense may not authorize a Department of Defense entity to offer or provide

personal information services directly to users using Department resources,

personnel, or equipment, or compete for contracts to provide such personal

information services directly to users, if users will be charged a fee for the

personal information services to recover the cost incurred to provide the services

or to earn a profit.

(2) The limitation in paragraph (1) shall not be construed to prohibit or preclude

the use of Department resources, personnel, or equipment to administer or

facilitate personal information services contracts with private contractors.

10 U.S.C. § 2492a.

CCS alleges that ARMP was either competing for a contract to provide Personal

Information Services or providing these services directly to fee-paying users in violation of

§ 2492a, by acting as a subcontractor and continuing to build out its own network. However, by

waiting to file its protest until after award, CCS waived this ground of protest. The solicitation

clearly informed offerors that ARMP could be a subcontractor and lease its infrastructure to

offerors reiterating identical communications conveyed to offerors in the draft solicitation and

the Industry Day presentation. In CCS’ case, there was also a pre-solicitation exchange with

AAFES clarifying ARMP’s role.

The draft solicitation expressly informed prospective offerors that ARMP could be

utilized as a subcontractor for “locations where ARMP [had] installed infrastructure,” and that

offerors would have the “option of leasing the ARMP network and equipment . . . .” AR 119-20.

Further, the draft solicitation listed several advantages of utilizing ARMP’s network.

A few weeks later, the Industry Day briefing made clear that an offeror had the option to

use ARMP’s infrastructure in certain locations and to designate ARMP as its subcontractor. See

AR 275-76. Industry Day attendees, including CCS representatives, were informed that ARMP

would provide a variety of services, including “Internet Gateway & LAN Services” and “Internet

Access Device leasing.” AR 275. Industry Day attendees also learned that ARMP would

35

provide these services in the Continental United States at “[m]ost major garrisons” with “[p]lans

to reach all garrisons in coming years.” AR 276. 14

Just a few days after Industry Day, on May 3, 2010, CCS sent AAFES an email

requesting clarification of ARMP’s role, stating:

Subject: RFP comments

The ARMP role is a little confusing and the scope of [its] support is not clear.

Will [it] only be able to provide support services where [it has] deployed

[Personal Information Services] already? Will [it] be able to provide those

services where [it deploys FMWRC Information Services] going forward (over

[its FMWRC Information Services] network)? Is there any certainty around

where and on what time schedule [it] will be able to provide services going

forward?

AR 2943. The contracting officer responded, stating:

a) ARMP is not limited to deploy [Personal Information Services] to provide

support. The deployment of ARMP’s official service support network [FMWRC

network] is independent from the for fee services that AAFES will offer.

b) ARMP would need to confirm [its] capability outside the Army sphere and

[FMWRC] network. As the [FMWRC] network expands, the capability to

support providers will also expand; although, separate agreements and [Service-

Level Agreements] are required with ARMP to consider future expansion.

Id.

CCS claims that this exchange did not advise it that ARMP could be used for future

build-outs, and that the contracting officer’s answer was “vague” and “border[ed] on evasive.”

Pl.’s Reply & Opp’n 36-37, Aug. 22, 2011. According to CCS, it was not clear that ARMP’s

support included providing infrastructure. Id. at 37. CCS’ interpretation is untenable. CCS

asked: “Will [ARMP] only be able to provide support services where [it has] deployed [Personal

Information Services] already?” AR 2943 (emphasis added). The contracting officer said no,

stating “ARMP is not limited to deploy [Personal Information Services] to provide support,” and

added that ARMP’s expanding FMWRC Information Services network could be utilized via

separate agreements. Id.

A few weeks after this clarification, the Government issued the solicitation, listing the

benefits of using ARMP as a subcontractor, and reiterating ARMP’s role and clarifying that the

14

Mr. Evard, CCS’ Executive Vice President, saw the slide “showing that ARMP had an

aggressive build-out plan,” but assumed that the information on the slide was out of date and

reflected ARMP’s plans before the December MOA. Second Evard Decl. ¶ 10. CCS’ erroneous

assumption does not change the fact that ARMP’s role was disclosed during Industry Day.

36

ARMP network would continue to expand. AR 366-67. In a paragraph titled “ARMP as a

Potential Internet Sub-Contractor,” the solicitation stated that ARMP could provide both existing

and “planned” infrastructure. AR 366-67. CCS claims that “planned” referred only to projects

for which construction was already under way, but there is no basis in the record for CCS’ gloss.

In sum, given the language in the draft and final solicitations, the Industry Day

presentation, and CCS’ exchange with AAFES, CCS knew that ARMP had been providing and

would continue to provide network infrastructure and other support services as a subcontractor to

the successful offeror -- the predicate for its claim that the Government violated 10 U.S.C.

§ 2492a. Even though it was aware of this alleged defect in the solicitation, CCS did not protest

until after it failed to receive the award. As such, CCS waived its ability to protest this statutory

violation under Blue & Gold.

The Court Declines to Invoke a Statutory Violation Exception to the Waiver Doctrine

CCS argues that even if it waived its statutory claim, the Court should not apply Blue &

Gold because a significant statutory violation is at issue. Pl.’s Reply & Opp’n 43. CCS posits

that the Blue & Gold waiver rule originated in part from the Government Accountability Office’s

(“GAO”) timeliness rule. This rule permits GAO to consider an untimely protest “for good

cause shown, or where it determines that a protest raises issues significant to the procurement

system . . . .” Id. at 44 (quoting 4 C.F.R. § 21.2(c)). As CCS recognizes, GAO’s exception to

the timeliness rule applies “only where the untimely issue directly concerns the interpretation or

application of the procurement statutes or regulations on a matter of widespread interest to the

procurement community.” Id. (citing 4 C.F.R. § 21.2(c) and quoting DePaul Hosp. & The

Catholic Health Ass’n of the United States, B-227160, 87-2 CPD ¶ 173, 1987 WL 102790, at *4

(Comp. Gen. Aug. 18, 1987) (citations omitted)).

CCS contends that this Court should adopt a similar exception because AAFES violated

the statute and contravened the legislative intent of prohibiting Government competition in the

commercial marketplace. Id. at 45. Even assuming arguendo that CCS is correct that AAFES

violated 10 U.S.C. § 2492a in this procurement, applying a statutory violation exception to the

Blue & Gold waiver rule would not be appropriate. The Blue & Gold waiver rule as extended by

COMINT is simple: if there is a patent ambiguity or error in the solicitation, a plaintiff must

seek redress in court prior to award. In fashioning and reaffirming this judicial waiver rule, the

Federal Circuit did not adopt GAO’s rule or practice, it applied a judicial doctrine, the patent

ambiguity doctrine, and recognized that it was unfair and inefficient to allow protestors to game

the system by waiting to raise problems with a solicitation until after they failed to receive the

award. As such, this Court declines CCS’ invitation to carve out an exception to the Blue &

Gold waiver rule.

Even if the Court were to invoke GAO’s rule, GAO’s exception to waiver would not

apply here. As GAO has noted, “In order to prevent the timeliness rules from becoming

meaningless, the significant issue exception is strictly construed and seldom used,” and the

burden is on the untimely protestor to show that its protest is of “widespread interest to the

procurement community.” DePaul Hosp., 1987 WL 102790, at *4. Statutory violations of

widespread interest typically implicate broad procurement statutes. See Adrian Supply Co.-

37

Reconsideration, 66 Comp. Gen. 367, 368-69 (1987) (applying the exception to the timeliness

rule because of a failure to properly evaluate sealed bids in violation of the Competition in

Contracting Act); Ass’n of Soil and Found. Eng., B-199548, 80-2 CPD ¶ 196, 1980 WL 15985,

at *2 (Comp. Gen. Sept. 15, 1980) (applying the exception to the timeliness rule to a protest

involving the Brooks Act), rev’d on other grounds, B-199548.2, 82-2 CPD ¶ 128, 1982 WL

31895 (Comp. Gen. Aug. 13, 1982).

Here, section 2492a is narrow. It only applies to a very limited category of procurements

within DoD -- NAFI contracts for “Personal Information Services” offered to users for a fee.

CCS has not persuaded the Court that an alleged violation of this narrow statute would have

sufficient widespread interest in the procurement community to vitiate a well-entrenched waiver

rule. See HMX, Inc., B-291102, 2003 CPD ¶ 52, 2002 WL 32072769 at *5 n.8 (Comp. Gen.

Nov. 4, 2002) (rejecting protestor’s claim that the applicability of the Commercial Space Act of

1998, Pub. L. 105-303, 112 Stat. 2843 (repealed 2010) involved an issue of “widespread interest

in the procurement community” justifying an exception to the timeliness rule); Goel Servs., Inc.,

B-310822.2, 2008 CPD ¶ 99, 2008 WL 2185937, at *2 (Comp. Gen. May 23, 2008) (finding that

a protest alleging an incorrect price evaluation for HUBZone firms under FAR 19.1308 was not

“of widespread interest to the procurement community warranting its resolution in the context of

an otherwise untimely protest”).

CCS’ Waiver of Its Organizational Conflict of Interest Claim

In Count II, CCS claims that ARMP’s role as a subcontractor and FMWRC’s employees’

participation on the Source Selection Committee and involvement in shaping the solicitation

constituted an improper organizational conflict of interest in violation of AAFES’ regulations.15

CCS’ OCI argument centers on AAFES’ Exchange Service Purchasing Policies 65-1, which

governs all AAFES purchases. Paragraph 1-21 of this policy states:

Selection of contractors and award of contracts must be made free of any conflict

of interest. A conflict of interest exists when the person selecting items for

purchase, selecting a contractor, placing an order or awarding a contract has a

financial interest in the business of the firm receiving an order or contract, or is in

a position to benefit because of a family interest. Contracting officers, their

representatives, ordering agents and other AAFES personnel who are authorized

to determine requirements, select items, or sign, approve, disapprove or

administer contracts (including inspection), are required to disqualify themselves

from contract transactions involving an actual or potential conflict of interest.

AR 7980.

CCS posits that two FMWRC employees, David LaPradd and John Temple, who were on

the Source Selection Committee, and a third FMWRC employee, Nate Wills, an Army

15

Additionally, CCS claims violations of the FAR and Army Regulation 215-4, but these

regulations do not apply to NAFIs.

38

contracting specialist on the contracting team, had a financial interest in an award to Resolute,

because Resolute proposed using ARMP as its primary subcontractor and ARMP is an affiliate

of FMWRC. Specifically, CCS contends:

ARMP, Resolute’s primary subcontractor, is an affiliate (i.e., a subsidiary

organization) of their employer, FMWRC. Thus, at a minimum, these individuals

had a “direct or indirect financial interest” or “other beneficial interest” in a

“proposed subcontractor” of one of the firms submitting a proposal. Because they

were involved in “selecting items for purchase, selecting a contractor, placing an

order or awarding a contract” and, through their employer, had a “financial

interest in the business of the firm receiving” award, these individuals had an

impermissible conflict of interest.

Pl.’s Mem. in Support of Mot. Summ. J. (“Pl.’s Mem.”) 17, July 21, 2011 (internal citation

omitted).

The Government argues that CCS waived this OCI claim because FMWRC’s

involvement was known to CCS prior to the deadline for submission of proposals, pointing to

slides from the Industry Day presentation. Resolute likewise argues that CCS waived this claim

because FMWRC/ARMP personnel attended the conference and identified themselves as

employees of FMWRC and ARMP, and attendees, including at least four CCS employees, saw a

slide entitled “Key Procurement/Operations Team” identifying three individuals from FMWRC

and one from ARMP as team members. Intervenor’s Mem. in Support of Cross Mot. J. 15; see

AR 279-80, 328-29. 16

CCS contends that the Industry Day materials did not provide it with sufficient notice of

ARMP’s and FMWRC’s role because the slide did not indicate whether Messrs. LaPradd,

Temple, and Wills would be on the procurement or operations side. Pl.’s Reply & Opp’n 38.

CCS’ post-hoc interpretation of this slide is not persuasive. Even if the slide did not detail the

precise involvement of the FMWRC employees in the procurement, it put CCS on notice that

they would be “key” players, triggering a duty to inquire. As Intervenor argues, “[t]o the extent

[ARMP’s and FMWRC’s role] was unclear, CCS was obligated to seek clarification of the issue

and protest if there was any ambiguity.” Intervenor’s Reply 6. On several occasions, CCS

sought clarification or voiced complaints about other aspects of the procurement, and AAFES

regularly responded to these inquiries. Even though it was on notice of these individuals’ “key”

roles in the procurement, CCS did not raise its OCI complaint until after it was denied the award.

Therefore, CCS waived its ability to protest on these grounds under Blue & Gold.

CCS’ Organizational Conflict of Interest Claim Fails

Even if CCS had not waived its OCI claim, this claim is unfounded. CCS’ OCI claim is

predicated on AAFES’ procurement policy, which provides: “A conflict of interest exists when

16

Neither Defendant nor Intervenor argue that CCS had notice of these employees’ roles

in the procurement by virtue of the Implementing Instructions.

39

the person selecting items for purchase, selecting a contractor, placing an order or awarding a

contract has a financial interest in the business of the firm receiving an order or contract . . .”

AR 7980. AAFES enforced this aspect of its procurement policy by requiring the Source

Selection Committee members to complete and submit a Conflict of Interest Statement. AR

8139. The form stated:

To the best of my knowledge and belief, no conflict of interest exists that may

diminish my capacity to perform an impartial and objective review of the

offeror’s proposal, or may otherwise result in a biased opinion or an unfair

advantage. . . . In determining whether any potential conflict of interest exists, I

agree to review whether my or my employer’s relationships with other persons or

entities, including but not limited to, ownership of stocks, bonds, other

outstanding financial interests or commitments, employment arrangements (past,

present, or under consideration) . . . may place me in a position of conflict, real or

apparent, with the evaluation proceedings.

AR 8142. Each member was required to complete the form and return it to the contracting

officer. AR 8139.

However, Messrs. LaPradd, Temple, and Wills submitted a different form, entitled

Certificate for Personnel Participating in Source Selection Concerning Nondisclosure, Conflicts

of Interest, and Rules of Conduct. AR 8152 (Mr. LaPradd), 8154 (Mr. Temple), 8157 (Mr.

Wills). That form contained the following statement regarding conflicts of interest:

To the best of my knowledge, I certify that neither I nor my spouse . . . have any

direct or indirect financial interest in any of the firms submitting proposals, or

their proposed subcontractors or have any other beneficial interest in such firm

except as fully disclosed on an attachment to this certification.

Id. (¶ 2). None of these three employees disclosed a beneficial interest on an attachment. Id.

Plaintiff claims that “[t]he representations made by Messrs. LaPradd, Temple, and Wills

in such forms are demonstrably and unassailably inaccurate,” based solely on the fact of their

employment at FMWRC, their roles on either the Source Selection Committee or the contracting

team, ARMP’s status as a potential subcontractor, and FMWRC’s relationship with ARMP.

Pl.’s Mem. 17-18.

The mere circumstances of these employees’ positions and ARMP’s role do not establish

that the FMWRC personnel in question had a financial interest in Resolute. CCS’ OCI claim is

predicated solely on the fact that ARMP is an affiliate of FMWRC, Messrs. LaPradd, Temple,

and Wills’ employer. CCS asserts a broad-based speculative contention that these three

employees necessarily had a financial interest in ARMP based on this affiliation. In essence,

CCS would divine a prohibited financial interest on the part of these FMWRC employees “in the

business of” ARMP and attribute that interest to Resolute. Nothing in the record suggests that

ARMP’s performance under Resolute’s contract could have impacted the compensation of

Messrs. LaPradd, Temple, and Wills. CCS also ignores the fact that in its own proposal, it

40

planned to use ARMP, thus creating the same conflict of interest it alleges. Specifically, CCS’

proposal stated: “CCS has plans and the necessary partnerships, including ARMP, in place to

roll services out to all locations . . . .” AR 713 (Tab 13). Of the 74 mandatory bases CCS

proposed to service with internet, CCS proposed using ARMP as its “deployment partner” at 18

locations, and using ARMP infrastructure where available. AR 804, 830-34 (Tab 13).

In this procurement, contractors were offering to provide Personal Information Services

directly to service members. AAFES was to obtain a commission, but there was no showing that

such commission would inure to the benefit of FMWRC personnel. To demonstrate an

organizational conflict of interest, a protestor must identify “hard facts” -- a mere inference or

suspicion of a conflict is not enough. PAI Corp. v. United States, 614 F.3d 1347, 1352-54 (Fed.

Cir. 2010) (finding that no organizational conflict of interest existed because the plaintiff failed

to identify “hard facts”); see also JWK Int’l Corp. v. United States, 52 Fed. Cl. 650, 659 (2002),

aff’d, 56 F. App’x 474 (Fed. Cir. 2003); L-3 Servs., Inc., B-400134.11, 2009 CPD ¶ 171, 2009

WL 2883179, at *11 (Comp. Gen. Sept. 3, 2009) (finding no impaired objectivity when the

relationship between the firms was attenuated and the possibility of financial benefit was too

remote); Am. Mgmt. Sys., Inc., B-285645, 2000 CPD ¶ 163, 2000 WL 1507307, at *4-5 (Comp.

Gen. Sept. 8, 2000) (finding no organizational conflict of interest when the agency’s integration

contractor provided assistance in procuring software and the integration contractor and a

software vendor had an agreement to seek out joint opportunities because the potential benefit

was too speculative and remote); Prof. Gunsmithing Inc., B-279048, 1998 WL 526375, at *3

(Comp. Gen. Aug. 24, 1998) (finding alleged conflict of interest too speculative based on

consultant evaluator receiving royalty payments if a certain design were selected).

Nor has CCS demonstrated the requisite prejudice to establish an OCI claim. As the

Court stated in JWK International Corporation v. United States, “[i]n short, even assuming the

existence of a conflict, plaintiff has not shown that ‘had it not been for the alleged error in the

procurement process, there was a reasonable likelihood that [it] would have been awarded the

contract.’” 52 Fed. Cl. at 658 (second alteration in original) (quoting Data Gen. Corp. v.

Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996)); see also Galen Med. Assocs., Inc. v. United

States, 369 F.3d 1324, 1330 (Fed. Cir. 2004) (stating that to “prevail in a protest the protester

must show not only a significant error in the procurement process, but also that the error

prejudiced it.” (citation and quotation marks omitted)). Similarly, CCS has not shown that there

was a reasonable likelihood it would have received the award if Messrs. LaPradd and Temple

were not part of the evaluation team and Mr. Wills was not part of the contracting team. CCS

has not claimed that the two FMWRC personnel on the Source Selection Committee evaluated

CCS or Resolute differently than the other three voting Committee members. In fact, Resolute’s

score would have been higher than CCS’ score even if the evaluations of Messrs. LaPradd and

Temple were removed from the mix. As such, CCS’ claim that an organizational conflict of

interest existed in this procurement under AAFES’ procurement policies fails.

AAFES’ Evaluation of Proposals

CCS claims that AAFES incorrectly evaluated the proposals by failing to use the

proposal scoring template and by normalizing the penetration rates.

41

Scoring

CCS claims that AAFES’ numeric scoring of the offerors’ proposals did not reflect the

actual strengths and weaknesses assigned by the Source Selection Committee. Specifically, CCS

argues that the majority of the individual evaluators failed to use the “proposal scoring template”

which provided the following comment codes: SS = significant strength, S = strength, SW =

significant weakness, W = weakness, C = clarification, and R = risk. E.g., AR 1253, 10508.

Only one evaluator used the recommended comment codes, while the other evaluators either

used a plus, minus, and neutral system, or simply provided comments. E.g., AR 1308-13, 1369-

74, 1486-91 (using the required codes); AR 1248-1253, 1349-1354 (using mix of plus/minus and

written comments).

CCS argues that the evaluators’ plus/minus system did not distinguish between strengths

and significant strengths or weaknesses and significant weaknesses, or identify risks. Given the

subjective assessments required, CCS fails to appreciate the discretion afforded technical

evaluators in scoring the technical elements in this procurement and overemphasizes the role of

the proposal scoring template. Neither the solicitation nor AAFES’ Exchange Operating

Procedure 65-13 required the use of comment codes for Significant Strengths, Strengths,

Weaknesses, Significant Weaknesses, and Risks. According to the solicitation, evaluators were

to numerically score proposals for each of the 11 evaluation factors, and justify the final ratings

“by drawing upon the strengths, weaknesses, and risks identified.” AR 453-54. The individual

evaluation sheets reflect that the evaluators complied with this requirement. Each team member

wrote notes articulating what aspects of each proposal warranted a given score. See, e.g., AR

1271 (noting that CCS has 10 years in the internet business and experience working on a military

base, as justification for a past performance score of [ * * * ] out of 100); AR 1389 (noting that

Resolute allows WiFi subscribers to print to Resolute printers and that gaming devices may be

associated with user accounts, as justification for a products score of [ * * * ] out of 100). The

failure to regurgitate the comment codes listed on the individual evaluator worksheets is a matter

of form, not substance, and does not warrant invalidating the technical evaluation. As the

Federal Circuit has recognized, challenges to the technical scoring involve the “minutiae of the

procurement process,” “discretionary determinations of procurement officials that a court will

not second guess.” COMINT, 700 F.3d at 1384 (quotation marks omitted) (quoting E.W. Bliss

Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (citations omitted)).

CCS further argues that there is a disconnect between the Source Selection Committee’s

recommendation, the point scores assigned for each factor, and the strengths and weaknesses

listed in the attachment to the Committee’s Report. CCS submits that the ratings in the Report

were not justified by “‘drawing upon the strengths, weaknesses, and risk[s] identified’” as

required by the solicitation. See Pl.’s Mem. 40-43. These “disconnects” are summarized as

follows:

The Final Weighted

The Solicitation Factor The Alleged Flaw

Average Scores

CCS: [ * * * ] [*** ************

Technical Design ****************

Resolute: [ * * * ] ****************

42

The Final Weighted

The Solicitation Factor The Alleged Flaw

Average Scores

************* ***

************* ***

************* ***

************* ***

************* ***

************* ***

* * * * * * * * * * * ].

[****************

CCS: [ * * * ] ****************

Scalability ****************

Resolute: [ * * * ] ****************

* * * * * * * * ].

[****************

CCS: [ * * * ] ****************

Standards ****************

Resolute: [ * * * ] ****************

* * * * * ].

[****************

****************

CCS: [ * * * ]

****************

Portability

****************

Resolute: [ * * * ]

****************

* * * * * ].

[****************

CCS: [ * * * ]

****************

Past Performance

****************

Resolute: [ * * * ]

* * * * * * * * * ].

[****************

CCS: [ * * * ]

****************

Speed to Market

****************

Resolute: [ * * * ]

* * * * * * * * * * * * * * ]. 17

17

Resolute presented its analysis in a different format than CCS. While CCS presented a

full critical path graph for each installation, Resolute chose to group the installations into

categories, then provide a critical path for each category. Compare AR 804-26 (Tab 14) with AR

535-41 (Tab 13).

43

CCS argues that the strengths and weaknesses identified in the Source Selection

Committee Report are “completely at odds” with the numeric scores. AR 1520. In so arguing,

CCS disregards the results of the Committee’s consensus evaluation of each proposal, which

assigned Resolute more strengths and fewer weaknesses overall than CCS. Compare AR 7825-

26, 7828-30 (Resolute’s strength/weakness determinations) with 7835-7839 (CCS’

strength/weakness determinations). For example, under the Technical Design factor, one of the

two most important evaluation factors, CCS received [ * * * ] weaknesses and [ * * * ] strengths

as compared to Resolute’s [ * * * ] weakness and [ * * * ] strengths, a finding that reasonably

supports to the higher score Resolute received. AR 7825, 7838. The same is true for the other

“disconnects” CCS alleged, with the difference in scores reflecting the strength/weakness

determinations:

• Scalability: Resolute had [ * * ] strengths and [ * ] weaknesses compared to CCS’

[ * * ] strengths and [ * * ] weakness. AR 7828, 7836;

• Standards: Resolute had [ * * ] strengths and [ * ] weaknesses compared to CCS’

[ * * ] strengths and [ * * ] weaknesses. AR 7828, 7836;

• Portability: Resolute had [ * * ] strengths and [ * ] weaknesses compared to CCS’

[ * * ] strengths and [ * * ] weaknesses. AR 7826, 7835;

• Past Performance: Resolute had [ * * ] strengths and [ * * ] weaknesses compared

to CCS’ [ * * ] strengths and [ * * ] weaknesses. AR 7829, 7837; and

• Speed to Market: Resolute had [ * * ] strengths and [ * * ] weakness compared to

CCS’ [ * * ] strengths. AR 7826, 7835.

This was a best value procurement, and the technical evaluators were charged with

assessing which proposal’s overall features, including technical design, products, portability,

speed to market, customer service, and business understanding, best met the Government’s

needs. As the Federal Circuit has recognized, “agencies ‘are entrusted with a good deal of

discretion in determining which bid is the most advantageous to the Government.’” Lockheed

Missiles & Space Co., Inc. v. Bentsen, 4 F.3d 955, 958 (Fed. Cir. 1993) (quoting Tidewater

Mgmt. Servs., Inc. v. United States, 216 Ct. Cl. 69, 83 (1978)); Glenn Def. Marine (ASIA), PTE

Ltd. v. United States, 720 F.3d 901, 911 (Fed. Cir. 2013) (citing E.W. Bliss, 77 F.3d at 449

(citations omitted)) (holding that a court will not second guess the discretionary determinations

of procurement officials regarding the minutiae of the procurement process including technical

ratings); COMINT, 700 F.3d at 1384 (same); Galen, 369 F.3d at 1330 (citing E.W. Bliss, 77 F.3d

at 449) (stating that the contracting officer has even greater discretion when a contract is to be

awarded on “best value” than on the basis of cost alone).

CCS further alleges that the Source Selection Committee violated AAFES procurement

policies by using flawed ratings and failing to justify the numeric scores given to CCS and

Resolute. The record does not support this allegation. Rather, the record reflects that each

voting member of the Source Selection Committee independently evaluated and scored each

evaluation factor for each proposal and wrote comments explaining or justifying the member’s

independent determination. AR 1248-1499. For example, for the Products evaluation factor,

44

one member gave CCS a score of [ * ], with comments that CCS could “rollout by June 2011 as

requested,” had “multiple ‘architectures’ of systems used to serve different bases/environments,”

and could provide internet in public hotspots. AR 1248. A different Committee member gave

CCS a score of [ * ] for the Products evaluation factor, noting that CCS “complies with all

requirements,” that it was “[c]urrently providing internet service through DSL equipment,” that it

had “[g]ood experience in [the] military environment, but seems to offer only one method, either

DSL or Cable modem,” and that it had “[l]imited offerings dependent on partnership.” AR 1328.

While the individualized ratings spanned a wide range, this does not mean they were flawed or

erroneous. Instead, this circumstance highlights the subjectivity of the evaluation process and

the reality that different aspects of CCS’ offer were valued by the individual raters. “This Court

does not sit as a super source selection authority to second guess and re-score offerors’

proposals.” AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 367, opinion clarified by, 87 Fed.

Cl. 654 (2009); Ne. Military Sales, Inc. v. United States, 100 Fed. Cl. 103, 110 (2011) (“[T]he

evaluation of proposals for their technical excellence or quality is a process that often requires

the special expertise of procurement officials, and thus reviewing courts give the greatest

deference possible to these determinations.” (citation and quotation marks omitted)). CCS has

not demonstrated that the ratings were flawed, or the numeric scores unwarranted. See

COMINT, 700 F.3d at 1384.

CCS also contends that the Source Selection Committee’s consensus scores were

inadequately justified. Once the individual evaluations were completed, Source Selection

Committee members met to determine their consensus scores and modified their individual

scores as a result of the discussion. See AR 7492 (EOP 65-13 ¶ 4-23). The modifications were

either made directly on score sheets or were reflected as differences between the numerical

scores on individual score sheets and the final Source Selection Committee Proposal Scoring

Spreadsheet, which reflected the consensus numbers. E.g., AR 1270-73 (noting changes in

specific factor scores “after discussion”); AR 1328-33 (highlighting several large point increases

for CCS from its original score).

Below is a summary of the changes between the initial individual scores and the Source

Selection Committee’s Proposal Scoring Spreadsheet for Resolute’s and CCS’ proposals for

internet services:

Individual Source Selection Committee Member Scores for CCS 18

Individual Scores Pre Consensus Meeting Individual Scores Post Consensus Meeting

Evaluation Factor JT DL AM MK MV JT DL AM MK MV

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Products

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Portability

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Marketing

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Technical Design

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Scalability

18

This comparison is derived from scores on individual score sheets in AR 1248-1432

and on the Source Selection Committee’s Proposal Scoring spreadsheet in AR 1228 and 1230.

45

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Standards

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Speed to Market

Customer Account

Service [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Customer Care and

Customer

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Satisfaction

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Past Performance

Business

Understanding and

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Reporting

AR 1228, 1248-53, 1268-73, 1290-95, 1308-13, 1328-33.

Individual Source Selection Committee Member Scores for Resolute

Individual Scores Pre Consensus Meeting Individual Scores Post Consensus Meeting

Evaluation Factor

JT DL AM MK MV JT DL AM MK MV

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Products

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Portability

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Marketing

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Technical Design

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Scalability

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Standards

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Speed to Market

Customer Account

Service [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Customer Care and

Customer Satisfaction [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Past Performance

Business

[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

Understanding

AR 1230, 1349-54, 1369-74, 1389-94, 1407-12, 1427-32.

These tables show that as a result of Source Selection Committee discussions, individual

Committee members reconsidered and at times altered their original scores. The modified

individual scores were then converted into weighted scores for each factor by each individual

evaluator. AR 1228, 1230. The average of each individual evaluator’s modified weighted score

was then used as a final score for ranking the proposals. AR 1228, 1230, 1525, 1552-54.

CCS does not argue that the comments and explanations accompanying these scores were

inaccurate. Rather, CCS contends that, because not every comment or explanation of a strength

and weakness was quoted in the Source Selection Committee Report, the scores were somehow

flawed. However, the evaluators’ comments indicate that they weighed the merits of each

46

proposal and considered all aspects of the proposals in arriving at their scores and rankings.

There is no reason for this Court to second guess the scoring here. “[I]t is well established that

the Court should not substitute its judgment to assess the relative merits of competing proposals

in a government procurement.” AshBritt, 87 Fed. Cl. at 367 (citing R & W Flammann GmbH v.

United States, 339 F.3d 1320, 1322 (Fed. Cir. 2003)).

CCS also claims that the record does not support AAFES’ representation that it called

each offeror’s past performance reference, but this allegation is belied by the AR. AR 1520,

7840. The Source Selection Committee Report states that “[r]eferences for each offeror were

contacted and used in evaluations. The reference calls were incorporated into the past

performance factor and scored accordingly. No information was received from the reference

calls that resulted in any scoring impact.” AR 1520. The record reflects that each voting

member of the Source Selection Committee made reference calls and documented the

information from each call. See AR 1266-67, 1286-87, 1326-27, 1346-47 (reflecting eight

reference calls about CCS and noting customers’ feedback, e.g., customer was “very pleased

with [CCS’] performance,” CCS had “great customer support” and was “on target [with]

everything”); 1367-68, 1387-88, 1425-26, 1445-46 (reflecting eight reference calls about

Resolute and noting customers’ feedback, e.g., customers were “very pleased with [Resolute’s]

performance” and “happy [with Resolute] on service and response to problems,” and Resolute

had a “well dedicated model” and was “very responsive to all customer needs”).

Lastly, CCS claims that the Source Selection Authority adopted the “flawed ratings”

without discussing the significance of the technical differences in terms of contract performance

or governmental needs. According to CCS, the Source Selection Decision highlighted the same

scores, strengths, and weaknesses identified by the Source Selection Committee without

“digging deeper and analyzing the significance of the scores.” Pl.’s Mem. 45. However, CCS

has not shown that the underlying technical evaluations were incorrect, irrational, or

inadequately documented, or that the findings here warranted “digging deeper.” Indeed, CCS

ignores the fact that the Source Selection Committee found Resolute to be the hands down

choice in the technical and past performance factors. The Committee’s Report stated:

With the exception of the corporate financial position, this is clearly the best

proposal.

. . . Resolute has strong, flexible product options with ample bandwidth and value

enhancements to offer customers. Network design and options for providing

service are robust, leveraging [its] extensive experience with AAFES. Resolute

consistently presented superior solutions to all factors requested within the RFP.

AR 1520-21.

AAFES’ Fee Evaluations

CCS claims that AAFES’ evaluation of price proposals was arbitrary and capricious

because AAFES improperly “normalized” the offerors’ price proposals in two respects: (1) it

used a “normalized penetration rate” -- the estimated percentage of the base population that

would pay for internet service -- based solely on ARMP’s subscription information, and (2) it

47

used a “normalized base revenue figure.” CCS contends that the normalized penetration rate was

improper because the solicitation allowed offerors to choose their technical approaches and did

not force them to use ARMP. CCS claims the agency’s use of a normalized base revenue figure

was unnecessary because offerors submitted pro forma Operating Statements and cost

projections as required by the RFP. CCS further contends that because these normalized

protocols were not disclosed in the solicitation CCS was prejudiced.

The purpose of normalization is to measure offers against the same “baseline.” As this

Court has recognized, it is appropriate to use normalization techniques in procurements when

there is no logical basis for differences in approach or when there is insufficient information

available to accurately evaluate proposals. Computer Scis. Corp. v. United States, 51 Fed. Cl.

297, 316 (2002) (citation omitted). Normalization allows the agency to establish a common

“should have bid” estimate. Id. (citation omitted). It segregates “cost factors which are

‘company unique’ . . . from those which are generally applicable to all offerors . . . .” Univ.

Research Co., LLC v. United States, 65 Fed. Cl. 500, 510 (2005) (quotation marks omitted)

(quoting Computer Scis., 51 Fed. Cl. at 316 (citation omitted)). In order to overturn an agency’s

normalization decision, the protestor must demonstrate that the choice made by the agency was

irrational. Marquette Med. Sys., Inc., B-277827.5, B-277827.7, 99-1 CPD ¶ 90, 1999 WL

311686, at *5 (Comp. Gen. Apr. 29, 1999).

To calculate the projected financial benefit of offers, AAFES used the following formula:

Projected Income = Base Population x Price x Fee Percentage x Penetration Rate

AAFES’ independent consultant, Deloitte, calculated standard penetration rates for these services

based on FMWRC’s historical usage rates in the Continental United States. AR 5876, 5879.

The rates used were 1.8% for pre-paid hourly service, 1.1% for pre-paid daily service, 0.8% for

pre-paid weekly service, and 2.9% for pre-paid monthly service. AR 5879.

In their pro forma Operating Statements, offerors assumed different penetration rates,

which translated into different potential revenues. CCS proposed a flat fee of [ * * * ] based on a

[ * * * * * * ] penetration rate, while Resolute proposed fees from [ * * * * * ] based on a

penetration rate of [ * * * * ]. Neither offeror allowed for different penetration rates depending

on whether a customer chose hourly, daily, weekly, or monthly service options, yet AAFES’

historical data showed that there were different rates for these services. Because the dollar

amount that AAFES would receive in fees was pegged to usage and dependent upon accurate

penetration rates, AAFES needed to compensate for either overstatements or understatements of

potential usage in order to accurately measure revenues. Normalizing the penetration rate

allowed AAFES to accurately measure how CCS’ and Resolute’s different fee percentages

would translate into dollars received by AAFES. Thus, CCS has not shown that AAFES’

decision to normalize the penetration rate was unreasonable or prejudicial.

AAFES’ Responsibility Determination of Resolute

According to AAFES policy, a responsible prospective contractor must meet seven

minimum standards. See AR 8020 (ESR Policy 65-1 ¶ 4-46). At issue in this case are two

standards -- that a prospective contractor must (1) have adequate financial resources, or the

48

ability to obtain such resources as required during performance, and (2) have a record of

satisfactory performance “or be able to document beyond reasonable doubt that any prior

problems that created a marginal or unsatisfactory situation have been eliminated.” Id. CCS

argues that the responsibility determination was arbitrary and capricious because the contracting

officer unreasonably concluded that Resolute had adequate financial resources and that its prior

performance difficulties had been resolved.

The Financial Responsibility Determination

CCS claims there is inadequate factual support to conclude that Resolute had sufficient

financial resources to perform the contract and that AAFES placed too much emphasis on how

the contract award would improve Resolute’s financial outlook. “Contracting officers are

‘generally given wide discretion’ in making responsibility determinations and in determining the

amount of information that is required to make a responsibility determination.” Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1334 (Fed. Cir. 2001)

(citing Grimberg, 702 F.2d at 1367); NCL Logistics Co. v. United States, 109 Fed. Cl. 596, 610

(2013); Afghan Am. Army Servs. Corp. v. United States, 106 Fed. Cl. 714, 722 (2012); Tech

Sys., Inc. v. United States, 98 Fed. Cl. 228, 266 (2011). The Court “cannot substitute [its]

judgment for that of the contracting officer in making responsibility determinations.” Bender

Shipbuilding & Repair Co. v. United States, 297 F.3d 1358, 1362 (Fed. Cir. 2002) (upholding a

financial responsibility determination because even though the awardee had financial problems,

the contracting officer examined the financial data before him and articulated a rational

explanation for his decision).

Under AAFES’ procurement policy, in order to be financially responsible, a prospective

contractor must have “adequate financial resources, or the ability to obtain such resources, as

required during the performance of the contract.” AR 8020. The contracting officer here

considered Resolute’s past financial difficulties, but placed more weight on the likelihood of

Resolute’s improved financial future, which was permissible under AAFES’ policy -- requiring

that a contractor have the “ability to obtain” adequate financial resources. This is not arbitrary

and capricious or irrational action.

A paramount element of CCS’ challenge to Resolute’s responsibility determination

concerns Resolute’s [ * * * * * * * * * * * * * * * ]. CCS claims that Resolute was in “default”

on this loan, but nothing in the record supports a conclusion that Resolute had defaulted or

missed payments on its [ * * * * * * * * * * * * * * * ]. The contracting officer was aware of the

loan. AAFES contacted the bank, and the bank provided documentation showing that Resolute

was repaying the loan. AR 1755, 8539, 8540-41. Further, the bank [ * * * * * * * * * * * * * * *

* * * * * * * * ]. Instead of finding Resolute in default, [ * * * * * * ] unequivocally stated that

Resolute was a stable business, “performing per its agreed loan terms with [ * * * * * ],” that the

bank would continue to support Resolute and was comfortable with Resolute’s ability to meet its

obligations. AR 8540.

A responsibility determination is a business judgment, and contracting officials enjoy

wide discretion in determining whether proceeding to award a contract to a particular entity

poses undue risk. NCL Logistics, 109 Fed. Cl. at 623 (citations omitted). Here, the agency

made this award fully aware of Resolute’s financial challenges and determined Resolute to be

49

responsible. See Ettefaq-Meliat-Hai-Afghan Consulting, Inc. v. United States, 106 Fed. Cl. 429,

436 (2012) (citations omitted) (“[T]his type of assessment is a quintessential business judgment,

and this Court will not second guess the contracting officer’s judgment where there is supporting

evidence.”). In Bender Shipbuilding, the Federal Circuit affirmed a financial responsibility

determination where the Army awarded a contract to a bidder that had recently filed for

bankruptcy under Chapter 11. 297 F.3d at 1362-63. The contracting officer in Bender

Shipbuilding acknowledged the seriousness of the company’s financial situation but awarded it

the contract, based in part on a guarantee of performance by the offeror’s parent company and

the availability of progress payments under the contract. Id. at 1360. In upholding the decision,

the Federal Circuit noted the “wide discretion” that contracting officers have in making

responsibility determinations and acknowledged that the awardee and its parent had financial

problems, but did not disturb the contracting officer’s determination that the awardee was

financially responsible. Id. at 1362. The awardee in Bender Shipbuilding was in a more

precarious position than Resolute here. There is no indication that Resolute was approaching

bankruptcy, and Resolute demonstrated that it had support from [ * * * * * * ]. CCS has not

shown that the contracting officer abused her discretion in finding Resolute responsible.

Citing the Vendor Financial Clearance data, CCS argues that since Resolute was not

cleared for the full contract amount, or even for [ * ] of the contract amount, it should not have

been found financially responsible. A financial clearance is “an independent source of

information for the contracting officer” indicating a “firm’s financial capability.” AR 8033.

Financial clearance under AAFES’ policy is only required for “merchandise, supplies, and

equipment purchases.” Id. The purpose of AAFES’ financial clearance policy is to “make sure

the supplier will ship ordered merchandise timely and will reimburse AAFES for returns (QA

rejections, recalls, aged merchandise, and so forth).” Id. This contract was not for the purchase

of “merchandise, supplies, or equipment,” but rather involved provision of telecommunication

services to users for a fee with a portion of that fee going back to the NAFI. As such, the

financial arrangement here did not pose the type of risk AAFES’ financial clearance was

intended to address. In any event, AAFES policy states that the financial clearance process does

not, by itself, dictate responsibility. Id. The policy allows a contracting officer to find an

awardee financially responsible even if it does not receive financial clearance in an amount

equivalent to the proposed purchase. Id.

CCS further challenges AAFES’ use of financial statements. CCS correctly observes that

the contracting officer erroneously claimed that Resolute’s financial analysis was based on

“audited financial statements for 2007, 2008, and 2009.” AR 1755 (emphasis added). In fact,

Resolute submitted audited statements for 2007 and 2008, and unaudited statements for 2009.

While CCS claims the absence of audited statements for 2009 should have “set off alarm bells,”

its own actions belie this claim. CCS itself did not submit audited financial statements. AR

1011.

The remainder of CCS’ challenges to the financial responsibility determination rest solely

on matters the Court may not address -- declarations that are not in the record containing Mr.

Jackson’s opinions as to Mr. Wright’s financial analysis and the contracting officer’s decision.

The record provides no basis for this Court to overturn the contracting officer’s responsibility

determination. AAFES and the contracting officer were fully aware of Resolute’s financial

difficulties. AAFES’ expert, Mr. Wright, acknowledged that Resolute faced severe financial

50

challenges, but projected that if Resolute received the award of the AAFES contract, Resolute’s

financial outlook would greatly improve. AR 1755, 8484. The contracting officer reasonably

relied on Mr. Wright’s analysis, noting not only that award would improve Resolute’s financial

outlook, but that Resolute would be able to “meet commission payment requirements during the

contract period of performance.” AR 1756. As Bender Shipbuilding established, it is

permissible for a contracting officer to consider income that a contractor would receive if the

contract at issue were awarded. 297 F.3d at 1362-63.

Consideration of Past Performance in the Responsibility Determination

CCS attempts to find fault with the contracting officer’s consideration of Resolute’s past

performance, arguing that the contracting officer ignored critical information. The contracting

officer identified two main past performance issues for Resolute. The first was a warning letter

dated October 16, 2009, for a service disruption. AR 1757. The contracting officer noted that

the issue had been resolved in a timely manner and that service had been restored the same day.

The second issue was a demand for the nonpayment of fees issued on January 13, 2010, and CCS

claims that the contracting officer ignored a cure notice from February 2010, but this allegation

is not supported by the record. The February 2010 letter discussed the same debt referenced in

the January 13, 2010 letter, provided Resolute with an additional 30 days to provide a “more

definitive action plan” and was part of the corrective action process referenced in the

responsibility determination. AR 10529; see AR 1757-58. The contracting officer found that

Resolute took sufficient corrective action, including a renegotiation of debt owed to AAFES.

AR 1757-58. While the contracting officer did not cite the February 2010 letter, this is not a

basis to overturn her responsibility determination. As the contracting officer noted, Resolute

began making payments on all debts in July 2010, and had consistently made payments since

then. AR 1758.

The Alleged Appearance of Impropriety

CCS alleges that the debt Resolute owed AAFES from a prior contract created an

appearance of impropriety. CCS claims that FMWRC’s and ARMP’s involvement in the

procurement, coupled with their and AAFES’ interest in Resolute, created an “aura of

inevitability” in the outcome of the competition, and skewed the competition in favor of

Resolute. However, CCS has not cited any case where a procurement was overturned on the

ground that a debt of an awardee to a government procuring entity created an appearance of

impropriety.

CCS contends that there was an appearance of impropriety for several reasons. First,

CCS claims that Resolute’s debt gave AAFES an interest in the financial success of Resolute and

a reason to favor Resolute in the competition. However, as the Government points out, Resolute

and AAFES had agreed upon a new payment schedule prior to award, and Resolute was current

under that schedule. Further, the record contains no evidence that the debt affected any member

of the Source Selection Committee, their scores, or the evaluations of any offerors.

Secon

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